9911796707
TMI Blog2024 (7) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiation of the Personal Insolvency Resolution Process against the Personal Guarantor is rejected. - SHRI BACHU VENKAT BALARAM DAS, MEMBER (JUDICIAL) AND SHRI ATUL CHATURVEDI, MEMBER (TECHNICAL) For the RP : Mr. Nilesh Sharma, Ms. Swastika Kumari, Mr/ Ms. Adyasha Nanda, Advs a/w Mr. Manoj Kumar Anand, RP. For the Respondent: Ms. Mani Gupta, Mr. Aman Chaudhary, Mr. Jasmeet S. Chadha, Advocates. ORDER PER: BACHU VENKAT BALARAM DAS, MEMBER (JUDICIAL) The present application has been filed by Intec Capital Limited, the Applicant through Resolution Professional, Mr. Manoj Kumar Anand, under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 read with Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors), Rules 2019 against Ms. Parul Upadhyay, the Personal Guarantor to the Corporate Debtor, i.e., M/s. IAP Company Private Limited having its Registered Office 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest thereon from this date onwards at a rate of Interest of 12% per annum or such other rate as may be determined by INTEC CAPITAL LIMITED from time to time compounding and payable with daily/ monthly/ Quarterly rests, for value received. The Respondent has also provided security cheque/s for encashment for repayment on behalf of the Corporate Debtor. 9. The Corporate Debtor wrongfully withheld the legitimate monies owed to the Financial Creditor, thereby causing wrongful gain to itself and wrongful loss to the Applicant. The aforementioned acts of the Corporate Debtor constituted 'events of defaults' as defined under Clause 10 of the Loan Agreement. The Consequence of Default and Rights available to Applicant which inter-alia provided for demand of immediate repayment of loan dues. The Applicant recalled the Loan facility vide Loan Recall cum Arbitration Notice dated 09.01.2018 but neither the Corporate Debtor nor the Respondent has cleared 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 Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, Form C, in terms of Rule 7 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019, supported by requisite fee and documents. b. Debtor was sent 7 E-Mails\Speed Post during the period 25.03.2022 to 10.032022 along with many telephone calls in compliance of Sec 99 (2) of the Code to prove repayment of debt of Rs. 71,90,317 but he failed to repay the same or provide any information of repayment as stated in Sec 99 (2) (a) (b) (c) of the Code. c. Here it is pertinent to note that debt was registered with information utility as per Sec 99 (3) of the Code. d. RP sought information from debtor, Creditor RP of CD in compliance of Sec 99 (4) of the Code. e. Debtor never provided information within 7 days in compliance of Sec 99(5) of the Code. On the other hand, he has filled petition dated 28.02.2022 for stay of order, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged arbitration proceedings, and he was kept in dark till the time final arbitral award was passed. Further, the said arbitral award has been passed in violation of moratorium imposed on the Company under section 14 of the Code pursuant to initiation of corporate insolvency resolution process on 28.02.2018. The said arbitral award has been challenged by the Petitioner under section 34 of Arbitration and Conciliation Act, 1996 before Ld. District Court, Saket, New Delhi vide petition titled Vipul Kant Upadhyay Anr. vs. Intec Capital Ltd. Ors. OMP (COMM) No. 12/22. v. It is submitted that the RP has filed his Report without taking into consideration the submissions made by the Respondent in response to queries raised by RP for preparation of the Report. The RP has intentionally ignored the contentions of the Respondent with sole motive of initiating insolvency proceedings against the Respondent. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conditions of this Agreement and/or any other agreements and documents which may been or may be executed by the Borrower with INTEC in respect of this Loan, is joint and several v. The above-mentioned provision makes it clear that the liability of the borrowers and co-borrowers under the contract to pay, repay and/or discharge obligations and to observe the terms and conditions of the agreement is joint and several. Thus, a perusal of the loan application form, the sanction letter dated 31.08.2016 and the record of default issued by the NESL makes it very clear that Ms. Parul Upadhyay, the Respondent/Personal Guarantor is not the Personal Guarantor. We, therefore, are unable to accept the submissions of the Resolution Professional as well as the Applicant that Ms. Parul Upadhyay, is a Personal Guarantor and the proceedings under Section 95 can be initiated against 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
