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TMI Blog2024 (7) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... e at 3F, Palam Triangle, Palam Vihar, Gurgaon, Haryana, 122001 for the total outstanding default amount of Rs. 85,00,000/- (Rupees Eighty-Five Lakhs) as on 31.08.2016. 2. M/s. Intec Capital Limited (hereafter referred to as 'Intec' or 'Financial Creditor' or 'Applicant') is a non-banking financial company engaged interalia in the business of providing financial facility. 3. M/s. IAP Company Private Limited (hereafter referred to as 'Corporate Debtor) is an entity engaged in the business of software development and Ms. Parul Upadhyay (hereinafter referred to as 'Respondent') is the Director of Corporate Debtor and has signed the loan documents in the capacity of the Personal Guarantor/ Co-borrower in the financial facility availed by the Corporate Debtor from Financial Creditor. 4. M/s. Intec Capital Limited was approached by the Corporate Debtor through its promotors/ shareholders/ directors/ representatives and submitted application for the purpose of availing loan facility for business purposes. Pursuant to discussion between the parties based on the representations made, information provided, documents submitted and assurances given regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outstanding dues standing due till date. 10. The Applicant had also preferred arbitration proceedings against the Corporate Debtor. The Ld. Arbitrator was pleased to pass Arbitral Award dated 28.12.2018. 11. The Corporate Insolvency Resolution Process ("CIRP") for Corporate Debtor commenced on 28.02.2018 in CP (IB) No.446/ND/2017. 12. The Applicant has also initiated the proceedings under Section 138 of Negotiable Instrument Act, 1881 against the respondents towards the security cheque issued by the personal guarantor for repayment of the dues at the time of recall of the financial facility by the Applicant which got dishonoured upon its presentation. 13. After considering total loan amount, payments received, overdue instalments, principle outstanding, interest on delayed payments, other charges as per the agreed terms and conditions under various transitional documents & deducting the payment received from the liquidation Proceeds on 21.03.2021, a total sum due and payable as on 31.03.2020 is as follows: S. No. Loan Account No. Amount due & payable (INR) 1. LNGGN03316170006891 Rs. 82,21,749 (SOD)- Rs. 10,31,432 (Liquidation Proceeds) = Rs. 71,90,317 14. The Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, which was later on withdrawn as on 11.03.2022. f. RP have examined the application as filled u/s 95 & state that It fulfils the requirements of sec 95 as asked in Sec 99 (6) (a) of the Code. Creditor (Applicant) has provided the information and given explanation as sought by RP in compliance of Sec 99 (6) (b) of the Code. g. RP recommends acceptance of application in the report as per Sec 99 (7) of the Code. h. RP finds that Debtor is not eligible for yet to be notified fresh start provisions u/s 80 to 93 as per Chapter Il Part Ill of the Code. Here it is pertinent to note that these provisions are applicable only for persons having annual income upto Rs 60,000/- & debtor has provided no details of his income despite repeated reminders. i. RP hereby records all above stated reasons for recommendation of acceptance of the application after examination in terms of sec 99 (7) in compliance of Sec 99 (9) of the Code. j. RP has sent the true copy of this report to Debtor and Creditor in compliance of Sec 99 (10) of the Code as on 17.03.2022. 18. THE OBJECTIONS OF THE PERSONAL GUARANTOR: i. The Petitioner was one of the co-borrowers which is evident from the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent. The RP has acted in a biased manner due to which the Respondent had also filed an application bearing I.A. No. 2366 of 2022 for removal/replacement of RP. vi. The Petitioner and the RP have not disclosed material facts before this Hon'ble Adjudicating Authority It is submitted that the Petitioner has claimed a debt of Rs. 82,21,749/- which is exorbitantly higher than the claim admitted by the resolution professional of the Company for the same transaction. The Respondent is a co-borrower for the same loan facility which was availed by the Company from the Petitioner. After the initiation of corporate insolvency resolution process of the Company, the Petitioner had submitted a claim of Rs. 98,04,050/- to the resolution professional of the Company. The resolution professional of the Company had admitted a claim of Rs. 51,19,260/- out of total claim of Rs. 98,04,050/-. vii. The RP has failed to consider that the Petitioner has filed the Petition claiming inflated amount and that for the same loan transaction it has sought different claim amounts for the Company and the Respondent. viii. Moreover, the RP has ignored the fact that the Petitioner has recovered substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst her. vi. She submitted that the Respondent has not executed any guarantee deed or any other contract of guarantee or agreed to act as a surety. She submitted that in the loan agreement, the Respondent has been shown as a Co-borrower. Further in the record of default issued by NESL also the Respondent has been shown as a Co-obligant. A perusal of these documents show that the Respondent has not been described as a Personal Guarantor or surety in any of these documents. We find force in the argument of the Ld. Counsel appearing for the Personal Guarantor. We are therefore, of the view that the Respondent is not a Personal Guarantor in the present case and therefore, the present application under Section 95(1) of the Code is not maintainable which is accordingly dismissed. vii. We find that the Respondent in the loan application form dated 12.08.2016 has been described as the Co-Borrower and not the Personal Guarantor. Extract of the application form is given below: viii. It is also observed that the applicant, has approached other legal forums including this Adjudicating Authority. The Applicant had initiated Arbitration proceedings under the Arbitration and Conciliation A ..... 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