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TMI Blog2024 (2) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the amount demanded by the Applicant and as such in overview entire amount demanded is un-serviced as on the date of order. v. The application is not hit by Limitation. It is directed to initiate Insolvency Resolution Process against the Respondent/Personal Guarantor and moratorium in relation to all the debts is declared, from today i.e. date of admission of the application and shall cease to have effect at the end of the period of 180 days, or this Tribunal passes order on the repayment plan under Section 114 whichever is earlier as provided under Sec 101 of IBC, 2016 - application filed under Section 95 (1) of the IBC, 2016 is admitted and the Insolvency Resolution Process stands initiated against the Respondent/Personal Guarantor. Application allowed. - SHAMMI KHAN, MEMBER (JUDICIAL) AND SAMEER KAKAR, MEMBER (TECHNICAL) For Applicant/SBI : Mr. Mandeep Singh Saluja Adv for Mr. Rituraj Meena, Adv. For the Respondent Personal Guarantor : Mr. Parth Shah, Ld. Adv. For IRP/RP : Mr. Sunil Kabra in Person ORDER PER: BENCH 1. The Present Application is filed under Section 95 of the Insolvency and Bankruptcy Code. 2016 (hereinafter re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, Mr. Pankaj Narayanbhai Patel is standing as a personal guarantor for the credit facilities granted under consortium agreement to M/s Swastik Ceracon Limited. ii. RP has sent intimation u/s 99 of IBC, 2016 and asked the Personal Guarantor Mr. Pankaj Narayanbhai Patel to provide proof of repayment of outstanding amount of credit facilities granted to the borrower M/s Swastik Ceracon Limited but the respondent has not provided any documentary evidence. iii. Thus, Resolution Professional is of the view that application should be accepted and proceedings should be initiated with respect to the Individual Insolvency Resolution Process of Mr. Jigarkumar Kodarlal Patel (Personal Guarantor to M/s Swastik Ceracon Limited) in order to recover the outstanding debt payable as per the Personal Guarantee Agreement/ deed executed dated 15th March 2016 between the Consortium Lenders and Personal Guarantors. iv. The Present application is filed against the personal guarantor is in the prescribed format and complete in all respects. 6. The Respondent/Personal Guarantor filed an affidavit in reply dated 31.05.2022 under diary no. D9205 and raised following objections to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired on 31.3.2021 (if counted from 31.3.2018). However, in view of the order dated 23.9.2021 passed by the Hon'ble Supreme Court in MA no. 665/2021 in SMC(C) No. 3 of 2020 (IN RE: Cognizance for Extension of Limitation) the relevant portion of which is reproduced below, it is stated that the claim is within the period of Limitation: 8. II. In case where the where the limitation would have expired during the period between 15.3.2020 till 2.10.201, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3.10.2021. In the event the actual balance period remaining with effect from 3.10.2021, is greater than 90 days, that longer period shall apply iii. It is submitted that the Applicant denied all the averments made in the para 3,4,5 and 6 of the reply, It is submitted that letter dated 3.12.2021 by RP addressed to the personal guarantor on page 11 of the RP report wherein the RP has intimated the personal guarantor regarding the order passed by this Hon'ble Tribunal and thereafter asked the personal guarantor to provide the details for preparing the report. It is noteworthy that on columns no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities of all concerned in the present proceeding. It denied that report and present petition are not maintainable as the nature of the debt is uncertain. 8. The proceedings in the matter was put on hold since the Constitutional Validity of the Sections 94 to 100 relating to the insolvency of personnel Guarantor was pending before the Hon ble Supreme Court in the matter of Dilip B. Jiwrajka V/s Union of India Ors. in WP(civil)No. 1281 of 2021. 9. The Hon ble Supreme Court in the judgement of Dilip B. Jiwrajka V/s Union of India Ors. in WP(civil)No. 1281 of 2021 dated 09.11.2023 upheld the Constitutional Validity of the Sections 94 to 100 and the Conclusion of the Judgments are as follows: i. No judicial adjudication is involved at the stages envisaged in Sections 95 to Section 99 of the IBC; ii. The resolution professional appointed under Section 97 serves a facilitative role of collating all the facts relevant to the examination of the application for the commencement of the insolvency resolution process which has been preferred under Section 94 or Section 95. The report to be submitted to the adjudicatory authority is recommendatory in nature on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reproduced below: The liability of the surety is co- extensive with that of the principal debtor, unless it is otherwise provided by the contract. 11. From the report of IRP, it is clear to us that: i. IRP has recommended to accept the application for the reason as stated in the report dated 11.12.2021. ii. The Respondent has admitted to have executed the Guarantee Agreement. iii. The Applicant has demanded the amount outstanding from the Respondent vide Demand Notice dated 22.09.2021. iv. Resolution Professional report states that no evidence was placed before him by the Respondent having paid the amount demanded by the Applicant and as such in overview entire amount demanded is un-serviced as on the date of order. v. In our view the application is not hit by Limitation. 12. In view of the foregoing we are left with no other choice but to order as under: - I. Initiate Insolvency Resolution Process against the Respondent/Personal Guarantor and moratorium in relation to all the debts is declared, from today i.e. date of admission of the application and shall cease to have effect at the end of the period of 180 days, or this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal, containing a proposal to the Creditors for restructuring of his debts or affairs. V. The repayment plan may authorize or require the Resolution Professional to: a) carry on the debtor's business or trade on his behalf or in his name: or b) realise the assets of the debtor; or c) administer or dispose of any funds of the debtor. The repayment plan shall include the following, namely; - a) justification for preparation of such repayment plan and reasons based on which the creditors may agree upon the plan; b) provision for payment of fee to the Resolution Professional; c) such other matters as may be specified. VI. The Resolution Professional shall submit the repayment plan along with his report on the plan to this Authority within a period of 21 days from the last date of submission of claims, as provided under Section 106. VII. In case the Resolution Professional recommends that a meeting of the creditors is not required to be called, he shall record the reasons therefor. If the Resolution Professional is of the opinion that a meeting of the creditors should be summoned, he shall specify the details as provided under Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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