9911796707
TMI Blog2024 (2) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... nce No BY.CDR(DAP)No. 749/2015-16, stating that the Company M/s Parekh Aluminex Limited stands exited from the CDR mechanism as failure. Time limitation - HELD THAT:- It is found that the Financial Creditor invoked the Guarantee on 18.05.2016 by Notice u/s 13(2) of SARFAESI Act, 2002 and the Corporate Debtor came to be admitted into CIRP on 01.02.2019. Since, it is already returned the finding that this Guarantee had not become effective on account of failure in implementation of CDR Package, it is not required to deal with the issue of limitation any further. Petition dismissed. - SH. PRABHAT KUMAR HON BLE MEMBER (TECHNICAL) AND JUSTICE VIRENDRASINGH BISHT (Retd.) HON BLE MEMBER (JUDICIAL) ORDER IA 5501/2023 in C.P. (IB)/420(MB)2022 1. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to induction of the Personal Guarantor herein in the Board of Directors. 2.3. It is further averred that final restructuring package of the Corporate Debtor was approved by CDR Empowered Group on 24.06.2013 and 25.07.2013 and on 28.06.2013, the Applicant have sanctioned Working Capital Facilities to the Corporate Debtor. Petitioner had approved CDR Package for the Credit Facilities to the extent of Rs. 134.74 crore on 30.09.2013. Thereafter, the Respondent herein had executed Deed of Guarantee dt. 10.04.2014 and guaranteed the repayment the Credit Facilities availed by the Corporate Debtor from the Petitioner as well as Indian Overseas Bank being Consortium Lead Bank and other consortium members including the Petitioner. 2.4. It is also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh Aluminex Limited, who is facing bankruptcy proceedings since the year 2017. This submission is found substantiated after referring to the Deed of Guarantee dt. 10.04.2014, which clearly mentions the address of the Respondent to be at 85, Navrang, Peddar Road, Dr. G. Deshmukh Marg, Mumbai - 400 026. 3.3. Further, the Respondent has resigned from the Company with effect from 28.04.2016. The Respondent has nothing to do with the Company and he had joined the Company as an Independent, Non-Executive Director only pursuant to the default and after his brother s demise and the address on which Demand Notice was served was not the address of the Respondent. Therefore, in any event any service on the Nana Chowk address is not good in law. Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to substantiate this submission, Respondent states as under: 3.5.1. The Petition clearly states the date on which the debt was due and date on which the default was occurred. The relevant items from the form at page 8 of the Petition are reproduced hereinbelow. . 3. Date on which the debt was due 31st December 2012 4. Date on which default occurred 31st March 2013 3.5.2. Therefore, the default in the present case had occurred on 31st December 2012 and in any event on 31st March 2013. In these circumstances, this Petition, which is filed in the year 2022, is definitely barred by limitation. 3.5.3. The law contemplates invocation of guarantee within a period of three years of default and if that is not done then also the claim is barred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed. The Respondent entered into this guarantee transaction which in no uncertain terms provides that in what circumstances this guarantee will come into force and will be applicable. 3.6.2. Some of the relevant clause of the Deed of Guarantee are reproduced herein below. ..L. And Whereas it is confirmed by the Lenders that the personal guarantee of the Guarantor will be effective if and only, if the CDR package sanctioned by the CDR EG has been implemented in full and totality in terms of the LOA issued and the same shall cease to have effect on happening or occurrence of certain events as detailed in this Deed of Guarantee and hence, this Guarantee given by Mr. Deepen Parekh in terms hereof shall be a conditional guarantee 3.6.3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Borrower; 3.6.5. This clearly provides that the Deed of Guarantee will be effective only on CDR being implemented and it will cease to have effect if the guarantor resigns as a director of the board, which happened. Any of the lender walking out of the CDR, which also happened and also in the event of liquidation or bankruptcy of the Company, admittedly, this also happened. Therefore, this Deed of Guarantee, in fact, never came into effect and even if it is to be construed that it came into effect, it ceased to have effect before it was invoked by the lenders. 3.6.6. Therefore, this Deed of Guarantee is no longer, never came into effect. It was a conditional guarantee and therefore, cannot be enforced by way of present proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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