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TMI Blog2024 (7) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... insolvency of the corporate debtor. These are the issues which have to be addressed in the CIRP of the corporate debtor and cannot be ground to set aside an order of admission under Section 7. It is already noticed that the insolvency process has also commenced against the principal borrower. There are no ground to interfere with the impugned order of the Adjudicating Authority admitting Section 7 application against the corporate debtor who was a corporate guarantor. There is no merit in the appeal - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Gaurav Mitra, Mr. Shashwat Anand, Mr. Prabhat Ranjan Raj, Mr. Dhruva Vig, Mr. Gunjesh Ranjan, Mr. Ishan Roy Chowdhury, Advocates. For the Respondents : Mr. Dhruv Malik, Ms. Palak Nenwani, Advocates for R-1. Ms. Prachi Johri and Ms. Abhipsa Sahu, Advocates with Mrs. Ritu Rastogi, IRP in person for R-2 JUDGMENT Ashok Bhushan , J. 1. This Appeal by Suspended Director of the corporate debtor has been filed challenging the order dated 25.01.2024 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery certificate for Rs. 23,29,19,212.46/- dated 24.07.2019 as well as the letter invoking corporate guarantee dated 29.10.2021. Section 7 application was admitted by the Adjudicating Authority by order dated 25.03.2022. Suspended Director of the corporate debtor filed an appeal being Company Appeal (AT) (Insolvency) No.464 of 2022 challenging the order dated 29.03.2022. Company Appeal (AT) (Insolvency) No.464 of 2022 was allowed on 14.07.2022 by which order the corporate debtor was permitted to file a detailed reply within two weeks and Section 7 application was revived before the Adjudicating Authority which was heard and decided. Corporate Debtor filed a reply before the Adjudicating Authority to which rejoinder affidavit was also filed by the financial creditor. Adjudicating Authority after hearing the parties by impugned order dated 25.01.2024 admitted Section 7 application. Adjudicating Authority relying on the order of the DRT found the debt and default. Adjudicating Authority having found existence of default proceeded to admit Section 7 application by the impugned order aggrieved by which order this Appeal has been filed. 2.2. It is also relevant to notice that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Recovery certificate having been issued for an amount of Rs. 23,29,19,212.46/-, debt and default is fully proved. The corporate debtor has not paid the amount and has been pursuing one after another litigation to avoid the payment. Section 7 application which was filed by the financial creditor in 2022 could be admitted only on 25.01.2024. It is submitted that the CoC have already been constituted. No grounds have been made out to interfere with the impugned order. 6. We have considered the submissions of the Counsel for the parties and perused the record. 7. The corporate debtor was a corporate guarantor of the financial facilities extended to principal borrower- M/s. Vayam Technologies Ltd. It is not disputed that the corporate debtor stood corporate guarantor of the financial facilities. On account of non-payment of amount by principal borrower, the financial creditor filed an OA before the DRT for recovery of its amount being O.A No. 466 of 2015 in which proceeding initially settlement took place between the parties which settlement having not been honoured. An IA has been filed for issuance of recovery certificate. An order was passed by the DRT dated 15.07.2019 allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Creditor has been awarded Rs. 23,29,19,212.46/- (Rupees Twenty- Three Crore Twenty-Nine Lakhs Nineteen Thousand Two Hundred Twelve and Paisa Forty Six Only) along-with interest @18% p.a. with effect from O.A. i.e., 08.10.2015 till realisation. Copy of the Recovery Certificate No. 347/2019 issued in M.A. No. 135/2017 in O.A. No. 466/2015 by the Hon'ble DRT, New Delhi is annexed herewith as ANNEXURE 5. Computation of amount and days of default in tabular form is annexed herewith as ANNEXURE 6. 8. The submission which has been advanced by Counsel for the appellant is that the order dated 15.07.2019 passed by the DRT allowing the application for recovery of sum of Rs.23,29,19,212.46/- is not final since an appeal was filed before the DRAT. Copy of the order passed by the DRAT has been noticed by the Adjudicating Authority in the impugned order itself. In paragraph 21 of the impugned order, the Adjudicating Authority has extracted the order of the DRAT dated 08.12.2022, which is as follows:- 21. The salient plea espoused on behalf of the CD is that the Order passed by Ld. DRT-II was challenged by filing Appeal No. 415/2019. The Ld. Counsel for the Applicant could draw our atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the DRT. The default against the principal borrower is fully proved. It is relevant to notice that the recovery certificate has already been issued by the DRT against the principal borrower as well as corporate debtor who was corporate guarantor. Recovery certificate is filed as Annexure A-3 to the appeal. Recovery certificate mentioned the name of Defendant in which corporate debtor- M/s. Abhisar Impex Pvt. Ltd. is also referred as Certified Debtor 5. It is useful to extract following from the recovery certificate:- It is certified that the above mentioned sum of RECOVERY CERTIFICATE FOR RS. 23,30,69,212.46 (RUPEES TWENTY THREE CRORE THIRTY LACS SIXTY NINE THOUSAND TWO HUNDRED TWELVE AND PAISE FORTY SIX ONLY) along with future interest is due to the Bank hereinafter referred to as Certified Holder from the defendants, hereinafter referred to as the Certified Debtor 1 M/s. Vayam Technologies Limited Certified Debtor 2 Mr. Ashok Tiwari (Managing Director) Certified Debtor 3 Ms. Amrita Tiwari (Director) Certified Debtor 4 Mr. Jitender Tiwari (Director) Certified Debtor 5 M/s. Abhisar Impex Pvt. Ltd. The Recovery Officer shall realize the amount as per this certificate in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on the judgment debtor. Once a claim fructifies into a final judgment and order/decree, upon adjudication, and a certificate of Recovery is also issued authorizing the creditor to realize its decretal dues, a fresh right accrues to the creditor to recover the amount of the final judgment and/or order/decree and/or the amount specified in the Recovery Certificate. 139. The Appellant Bank was thus entitled to initiate proceedings under Section 7 IBC within three years from the date of issuance of the Recovery Certificate. The Petition of the Appellant Bank, would not be barred by limitation at least till 24th May 2020. 143. Moreover, a judgment and/or decree for money in favour of the Financial Creditor, passed by the DRT, or any other Tribunal or Court, or the issuance of a Certificate of Recovery in favour of the Financial Creditor, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 IBC for initiation of the Corporate Insolvency Resolution Process, within three years from the date of the judgment and/or decree or within three years from the date of issuance of the Certificate of Recovery, if the dues of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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