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TMI Blog2024 (3) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings under SARFAESI Act including proceedings under the I B Code - the notice dated 22.02.2020 was notice by which guarantee stood invoked and submission of the Appellant that said notice was not notice of invocation of guarantee, cannot be accepted. In so far as, subsequent notice which was given to the Financial Creditor being notice dated 12.02.2021, it has been submitted by the Financial Creditor that since no payment was made in pursuance of the notice dated 22.02.2020 another letter was issued on 12.02.2021 - Section 7 application filed by the Financial Creditor has been brought on record, which clearly mentioned the notice date as 22.02.2020 which has been referred as Recall Notice issued by the Financial Creditor. When Recall Notice has been issued by the Financial Creditor, the Principal Borrower and Guarantors, liability to pay arises on all and the submission of the Corporate Debtor relying on subsequent notice dated 12.02.2021 cannot affect the right of the Financial Creditor to initiate proceeding on the basis of notice dated 22.02.2020. Even though subsequent notice dated 12.02.2021 was during 10A period but Recall Notice having been issued on 22.02.2020, the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation Limited to the Principal Borrower as well as the Mortgagors and Guarantors including M/s Earthbuild Greencity Private Limited (Corporate Guarantor) by which notice borrower as well as Corporate Guarantor were asked to pay Rs.37,17,10,172/- within seven days of the receipt of the notice. No payment was made in pursuance of the demand notice. (iv) The Financial Creditor issued another notice dated 12.02.2021 which was addressed to the Corporate Guarantors and other Guarantors and Borrower asking for payment of Rs.43,23,76,718/- within 15 days. (v) In the Corporate Insolvency Resolution Process of DHFL, Resolution Plan submitted by Piramal Capital and Housing Finance Limited was approved, whose name was subsequently changed to Piramal Capital and Housing Finance Limited. (vi) Application under Section 7 was filed by the Piramal Capital and Housing Finance Limited, the Financial Creditor against the Corporate Debtor - M/s Earthbuild Greencity Private Limited on which CP (IB) No.59/ALD/2022 was registered. Another application was filed by the Financial Creditor against the Principal Borrower M/s Crystal Facilities Management Private Limited being CP (IB) No.439/ND/2022. (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which also prove the default against the Principal Borrower as well as the Corporate Debtor, who was Guarantor of the loan. It is submitted that against the Principal Borrower also Section 7 application was filed which has been admitted by the Adjudicating Authority by order dated 19.01.2023. In proceeding against the Principal Borrower, notice dated 22.02.2020 was referred and relying on the said notice, the Adjudicating Authority has admitted Section 7 application. 5. We have heard learned counsel for the parties and perused the record. 6. The Adjudicating Authority in the impugned order has returned finding that despite opportunities, no appearance was made on behalf of the Corporate Debtor. Respondent has also filed its reply in this appeal, where the Respondent has brought on the record the order of the Adjudicating Authority dated 07.12.2022, where the Adjudicating Authority has permitted for substituted service. Order dated 07.12.2022 is as follows: ORDER It is stated by Ld. Counsel for the petitioner that the notice issued to respondent was received back with report that address is not complete. So, it is requested by the Ld. Counsel for the petitioner that substituted mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2020 was never served on the Corporate Debtor. The copy of notice dated 22.02.2020 has not been filed along with the appeal, however, the Respondent in his reply has brought on record the said notice as Annexure R-10. Notice dated 22.02.2020 has been addressed to Principal Borrower as well as Mortgagors and Corporate Guarantors including the Corporate Debtor M/s Earthbuild Greencity Private Limited. In Para 6 and 7 of the notice following has been stated: vi. In view of the foregoing, we hereby call upon the Borrower, the Mortgagors and the Guarantors named in this notice, to pay the outstanding amount of Rs.37,17,10,172/-(INR Thirty Seven Crore Seventeen Lakhs ten thousand one hundred seventy two) as on (Feb 22, 2020 in your loan account plus other charges and interest accrued till the date of Loan closure, within 7 (seven) days from the receipt of this notice. vii. In the event of your failure to pay the said amount within 7 (seven) days, DHFL will be constrained to initiate appropriate legal proceedings against all of you including enforcement of our rights under the provisions of the SARFAESI Act/ initiate the proceedings under the Insolvency and Bankruptcy Code 2016 and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority refuting the Recall Notice dated 22.02.2020 or to raise any defense to oppose Section 7 application. Inspite of the substituted service as directed vide order dated 07.12.2022, the Corporate Debtor never appeared before the Adjudicating Authority nor raised any defense nor refuted service of notice dated 22.02.2020. 13. From the facts brought on the record, it is clear that after April, 2018 no payments have been made either by the Principal Borrower or the Corporate Guarantor towards the loan. Certificate issued by NeSL was also brought on the record in support of Application under Section 7 where default has been proved. It is true that date of default i.e. 15.04.2018 was initially date of default of Principal Borrower but Loan Recall Notice had been issued on 22.02.2020 which was addressed to Principal Borrower as well as all Guarantors including the Corporate Debtor M/s Earthbuild Greencity Private Limited. The application filed by the Financial Creditor cannot be held to be barred by Section 10A. 14. In view of the foregoing discussion and conclusions, we are of the view that no grounds have been made out to interfere with the impugned order passed by the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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