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TMI Blog2025 (1) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of service of demand notice and was duly served upon the Appellant who did not file any response. The judgment relied upon by the Appellant in the case of Mr. Ravi Ajit Kulkarni [ 2021 (9) TMI 60 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] may be of some help to the Appellant had the RP not given independent finding in its report dated 23.07.2021 which is already reproduced in the earlier part of this order, for a quick reference, in which it has been categorically said that in the virtual meeting organized on 19.06.2021, the Appellant acknowledged the existence of debt and stated that he has not made any payment in capacity of guarantor towards the debt due by the CD of the Respondent Bank Section 99(2) provides that the debtor has to prove repayment of the debt claimed as unpaid by the creditor by furnishing evidence of electronic transfer of the unpaid amount from the bank account of the debtor, evidence of encashment of a cheque issued by the debtor or a signed acknowledgment by the creditor accepting receipt of dues whereas in the present case the Appellant categorically denied to have made payment which was sufficient to hold that there is a default. Conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 480/2018-19/12269, having been appointed by the Respondent. It has been recorded in the order that the Appellant did not file any submissions till the date of hearing of the said application. The Tribunal recorded in para 7 of its order dated 16.07.2021 that based on the submissions made by the Applicant and the documents produced and placed on record before this bench, the bench has no doubt in its mind that there is a default on the part of the personal guarantor by not fulfilling the debt owed to the CD, i.e. Bohra Industries Limited, as per the Deed of Guarantee entered between the parties through the Deed of Guarantee dated 05.09.2017. 7. The Tribunal confirmed the appointment of the RP and directed him to make the recommendations with reasons in writing for acceptance or rejection of the Application within the stipulated time as envisaged under the provisions of Section 99 of the Code and further directed him to provide a copy of the report drawn under sub-section 7 of Section 99 to the creditor as soon as the same is filed before the Tribunal and in terms of Rule 9 of the Rules shall provide copy of application with copy of the order to IBBI for its records. The order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NeSL report dated 21.08.2020 is annexed herewith and marked as Annexure-E. 7. That on further reviewing the application, the RP has noted that the Creditor has issued a demand notice dated 25.08.2020 in requisite FORM B, as required under rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process For Personal Guarantors to Corporate Debtor) Rules, 2019, demanding the total outstanding debt of Rs. 70.73 Cr. The demand notice is annexed at Page No. 171 of the application filed by the creditor under section 95 of the code. True copy of the demand notice (FORM B) dated 25.08.2020 is annexed herewith and duly marked as Annexure- F. 8. That on further perusal of the application and the order dated 16.07.2021 of this Hon'ble Tribunal it is observed that the Guarantor has not responded to the demand notice issued by the State Bank of India. 9. That the Applicant vide email dated 16.07.2021 intimated the creditor (State Bank of India) regarding the order of Hon'ble NCLT, Jaipur for appointment of Mr. Manohar La! Vij as the Resolution Professional under section 97 of Insolvency and Bankruptcy Code, 2016, for the insolvency reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of resolution professional under section 97 of the code has held that there is a default on part of the personal guarantor by not fulfilling the debt owed to the corporate debtor. The relevant para of the order dated 16.07.2021 is reproduced hereunder for ready reference: - 7. Based on the submissions made by the Applicant and the documents produced and placed on record before this Bench, the Bench has no doubt in its mind that there is a 'default ' on the part of the Personal Guarantor by not fulfilling the debt owed to the Corporate Debtor, i.e. Bohra Industries Limited, as per the Deed of Guarantee entered between the parties through the Deed of Guarantee dated 05. 09.201 7. 9. The Tribunal after considering its report, admitted the application vide its impugned order dated 28.03.2024 and hence, the present appeal has been preferred under Section 61 of the Code. 10. Counsel for the Appellant has vehemently argued that the Tribunal has committed an error in deciding in para 7 of the order dated 16.07.2021 that the Appellant has committed a default. It is further submitted that having been biased with the said finding, the RP has recorded its finding in para 14 of the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was duly served upon the Appellant who did not file any response. The Tribunal in the said facts and circumstances confirmed the appointment of the RP and ordered the RP to make recommendation as prescribed under Section 99 of the Code but in para 7 of the order dated 16.07.2021, has observed that there is a default on the part of the Appellant for not fulfilling its promise in regard to the debt owed by the CD. The judgment relied upon by the Appellant in the case of Mr. Ravi Ajit Kulkarni (Supra) may be of some help to the Appellant had the RP not given independent finding in its report dated 23.07.2021 which we have already reproduced in the earlier part of this order, for a quick reference, in which it has been categorically said that in the virtual meeting organized on 19.06.2021, the Appellant acknowledged the existence of debt and stated that he has not made any payment in capacity of guarantor towards the debt due by the CD of the Respondent Bank Section 99(2) provides that the debtor has to prove repayment of the debt claimed as unpaid by the creditor by furnishing evidence of electronic transfer of the unpaid amount from the bank account of the debtor, evidence of en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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