9911796707
TMI Blog2024 (10) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... in each of these appeals since being common in nature they are being decided together. 1. Comp App (AT) (CH) (Ins) No.315/2024 has been preferred by the present appellant being aggrieved against the common Impugned Order dated 19.07.2024, as it was rendered in IA(IBC)/1285/2024 in IA/4/2024, as well as, in IA(IBC)1286/2024 in IA/1792/2024 and in IA/1287/2024, (all in IA/590/2023 in CP(IB) No.129/95/HDB/2022). 2. Comp App (AT) (CH) (Ins) No.316/2024 has been preferred by the present appellant being aggrieved against the common Impugned Order dated 19.07.2024, as it was rendered in IA(IBC)1291/2024 in IA(IBC)/2(HYD)/2024, in IA(IBC)1292/2024 in IA No.1790/2023 and in IA/1293 (all in IA(IBC) 591/2023 in CP(IB) No.131/95/HDB/2022). 3. Comp App (AT) (CH) (Ins) No.319/2024 has been preferred by the present appellant being aggrieved against the common Impugned Order dated 19.07.2024, as it was rendered in IA(IBC)1288(HYD)/2024 in IA(IBC)/03(HYD)/2024, in IA(IBC)1289(HYD)/2024 in IA(IBC)/1793(HYD)/2023 and in IA/1290/2024 (all in IA(IBC)/589(HYD)/2023 in CP(IB) No.126/2022). 4. Comp App (AT) (CH) (Ins) No.320/2024 has been preferred by the present appellant being aggrieved against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the demand raised by Respondent No.2, when the amount was not remitted, the 1st Respondent (i.e., Bank) / the financial creditor filed Company Petitions being CP(IB)/129/95/HDB/2022, CP(IB)/131/95/HDB/2022, CP(IB)/126/95/HDB/2022, CP(IB)127/95/HDB/2022 and CP(IB)/111/95/HDB/2022 against the respective Personal Guarantors / Appellants herein. Upon hearing of the aforesaid Company Petitions preferred under Section 95 of the I & B Code, seeking initiation of the Insolvency Resolution Proceedings, against the respective personal guarantors, NCLT, Hyderabad Bench granted interim moratorium an order dated 20.04.2022, appointed the Resolution Professional and directed him to submit report under section 99, within a period of ten days and also directed the FC to issue notice to the personal guarantors / appellants herein. The proceedings of the aforesaid Company Petition proceeded ex-parte against the appellant. Consequentially, the Respondent No.2 filed a report recommending admission to the IRP Proceedings. NCLT delivered its judgement on 21.06.2022 admitting the petitions preferred under section 95 of the Code and directed the RP to continue further process in relation to preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de an order of 11.12.2023 had reserved the orders on the respective IAs filed by RP in this regard. The RP sent notice under Regulation 20(1) of the IBBI (Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Regulations, 2019 on failure to implement the repayment plan 28.11.2023. Consequent to it, when despite of such notice, the amount was not remitted, RP filed another set of IAs under section 118(2) of the Code submitting before NCLT that the repayment plan has not been implemented in full on 20.12.2023. The Adjudicating Authority / NCLT after a number of hearings, issued orders under section 118(3) of the Code on 07.02.2024 on the two sets of IAs filed by the RP before it under section 118(2) of the Code and by such orders, it took on record the report of RP noting failure of the Repayment Plan and granted liberty to the FC to file bankruptcy application against the Personal Guarantors / Appellants herein. Accordingly, the FC / Respondent No.2 herein filed IA(IBC)/1333(HYD)/2024 before the NCLT, Hyderabad Bench on 29.03.2024 seeking initiation of "bankruptcy process" against the personal guarantors (the appellants). The Appellants / personal guarantors, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though it had powers to do so. In this context, it is seen from the records that the five personal guarantors / appellants herein apparently have not complied with the conditions and timelines of the repayment plan, despite of the communications which were sent by the Resolution Professional. Under law the repayment plan will have to be regulated in accordance with Regulations 20 of IBBI Regulations and the stipulated time frame has to be strictly adhered to and in an event of the breach of repayment, by the personal guarantor, the legal consequences would automatically follow as per the provisions contained under Section 118 of the I & B Code. As per Section 118, the plan would be deemed to have come to an end, if it has not been fully implemented. Section 118 contemplates that, when the Resolution Professional finds that, the schedule of the approved repayment plan has not been complied with, and he submits his report accordingly under Subsection (2) of Section 118 of the I & B Code, the Learned Adjudicating Authority is legally supposed to pass an order on the basis of the report thus submitted, fortifying the aspect of nonimplementation of the repayment schedule and explicitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 100(4), or 115(2), or 118(3), a bankruptcy application could be filed within three months from the date of order passed by the Learned Adjudicating Authority under Subsection (1) of Section 121. Section 121 is extracted hereunder : - "121. Application for bankruptcy - (1) An application for bankruptcy of a debtor may be made, by a creditor individually or jointly with other creditors or by a debtor, to the Adjudicating Authority in the following circumstances, namely: - (a) Where an order has been passed by an Adjudicating Authority under sub-section (4) of section 100; or (b) Where an order has been passed by an Adjudicating Authority under sub-section (2) of section 115; or (c) Where an order has been passed by an Adjudicating Authority under sub-section (3) of section 118. (2) An application for bankruptcy shall be filed within a period of three months of the date of the order passed by the Adjudicating Authority under the sections referred to in sub-section (1). (3) Where the debtor is a firm, the application under sub-section (1) may be filed by any of its partners". In the instant appeals, the Appellants have sought to challenge a set of orders of NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority on 13.09.2023 under section 114(1), will cease to have its life and consequentially owing to the deeming clause, the grant of liberty to the creditor to initiate action under Section 121 cannot be faulted in any manner. The Learned Counsel for the Appellants submits that in case of 2 other personal guarantors, the stipulations of the repayment plan have been diluted and the repayment amount has been accepted even after the lapse of the time period prescribed in the respective repayment plans. Particularly he emphasizes upon the words "All persons" as referred to under Section 118 (1) and he submits that, when Subsection (1) of Section 118 refers to "all persons", it will mean that the Appellants should be meted out with the same treatment, as it is alleged to have been extended to other personal guarantors to whom the liberty was granted, by accepting the money even after the lapse of the period under the repayment plan. This "negative parity", is a philosophy which is un heard of in the judicial proceedings. Particularly, when the inference which could be drawn by the aforesaid argument would be that, the appellant will be deemed to admit that he has committed a de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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