9911796707
TMI Blog2025 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... Guarantee related agreement was cancelled by the guarantor and any of the Financial Creditors - Demand Notices dated 27.09.2024 were issued by the Respondent/FC Canara Bank u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Further, a Recall Notice dated 07.10.2024 as well as Form-B dated 08.11.2024 was issued by the Respondent/FC Canara Bank for invocation of Guarantee against the Applicant/Personal Guarantor which has not been withdrawn till date. It is stated in the report that the Applicant is eligible under Section 94(4) of the IBC, 2016 - It is stated in the said report that all the documents required under Rule 6 along with the Form-A of Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantor to Corporate Debtor has been filed. Further, the conditions under Section 100 of the IBC are met, as there is an undisputed debt of Rs. 9.63 Crore, default by the Personal Guarantor, and a valid invocation of the guarantee. Conclusion - The application under Section 94 of the IBC was maintainable and that the absence of ongoing CIRP or liquidation agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Further, a Recall Notice dated 07.10.2024 was also issued by the Respondent Bank/Canara Bank calling upon the borrower M/s Bala Treepura Agro Industries Limited as well as the Applicant and others to repay the amount mentioned in the recall notice with further interest and other charges. The Respondent Bank/Canara Bank by way of this Recall notice also invoked the Personal Guarantee of the Applicant and others which is annexed as Annexure A. 6. Thereafter, the Respondent Bank/Canara Bank also invoked the personal guarantee by serving Form-B being Demand Notice dated 08.11.2024 Section 95(4)(b) of the IBC, 2016 r.w. Rule 7(1) of the I&B (AAA for IRP for PGCD) Rules, 2019 asking the Respondent/Personal Guarantor to pay the outstanding dues of Rs. 9,63,72,993.94ps. within 14 days which is annexed as Annexure B Colly. 7. The Applicant/Personal Guarantor has filed this petition in prescribed FORM-A on 18.12.2024 under Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Bankruptcy Process for Personal Guarantors to Corporate Debtors) Rules, 2019 before this Adjudicating Authority for initiation of Insolvency Resolution Process. 8. On presentatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal merit and should be dismissed with costs, upholding the rights of the financial creditor to recover public funds lawfully. 11. The Petitioner/Personal Guarantor filed Rejoinder to the Reply of the Respondent Bank/Caraan Bank. The Summary of Rejoinder by Personal Guarantor (PG) in CP (IB) 371/2024 is as under:- (a). PG asserts that CIRP against the corporate debtor is not a precondition for filing insolvency under IBC. The PG has an independent right to seek resolution. (b). Bank's claim that the petition is an afterthought is false, as the petition was filed after notice of guarantee invocation and issuance of Form B notice under IBC. (c). PG acknowledges being a guarantor but states that the loan was availed by the corporate debtor, not personally by the PG. (d). PG denies that the petition was filed to avoid SARFAESI proceedings or DRT action and states that the petition was initiated before the DRT filing. (e). PG refutes claims of fraud and fund siphoning, stating that these allegations are baseless and meant to mislead the tribunal. (f). PG argues that the bank's actions violate the IBC's overriding effect (Sec. 238) and amount to abuse of process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Respondent Bank/Canara Bank on 08.11.2024 itself invoked the guarantee and issued Form-B Notice under Section 95(4)(b) of IBC, which establishes the basis for insolvency proceedings against the Personal Guarantor. 20. The IRP, after examining the material on record, concluded that the debt is due and payable, and the Personal Guarantor has defaulted in payment. No valid objections were raised against the RP's findings that would justify rejecting the application under Section 99(5) of the IBC. The IRP's report confirms the existence of debt and default, further justifying the admission of the petition. 21. The Financial Creditor's objections that the petition is an afterthought to evade SARFAESI and DRT proceedings are not sustainable, as the Personal Guarantor, in case of default in payment of debt liability on liability upon invocation of the guarantee, has the right to initiate proceedings U/s 94(1) of the IBC independently. 22. The Financial Creditor's objections that in the absence of an ongoing CIRP or liquidation against the Corporate Debtor renders the present Petition by the Personal Guarantor non-maintainable is also not sustainable in view of the lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 upheld the Constitutional Validity of the Sections 94 to 100. 26. From the report of IRP, it is clear to us that: i. IRP has recommended accepting the application for the reason as stated in the report dated 11.01.2025. ii. Resolution Professional report states that no evidence was placed before her that Personal Guarantor paid the amount demanded by the Financial Creditors and as such in over view demanded amount is un-serviced as on the date of order. iii. The IRP had not received any document whereby the personal Guarantee related agreement was cancelled by the guarantor and any of the Financial Creditors. iv. Demand Notices dated 27.09.2024 were issued by the Respondent/FC Canara Bank u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Further, a Recall Notice dated 07.10.2024 as well as Form-B dated 08.11.2024 was issued by the Respondent/FC Canara Bank for invocation of Guarantee against the Applicant/Personal Guarantor which has not been withdrawn till date. v. It is stated in the report that the Applicant is eligible under Section 94(4) of the IBC, 2016. vi. It is stated in the said report t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Sub Section (1) of Section 102(2) shall include: - (a) details of the order admitting the application; (b) particulars of the resolution professional with whom the claims are to be registered; and ( c) the last date for submission of claims. IV. The publication of notice shall be made in two newspapers, one in English and other in Vernacular which have wide circulation in the State where the Corporate Debtor and Personal Guarantor situated/resides. The Resolution Professional shall furnish two spare copies of the notice to the Registry for the record. V. The Resolution Professional in exercise of the powers conferred under Section 104 shall prepare a list of creditors on the basis of: a. the information disclosed in the application filed by the debtor under Sections 94 or 95, as the case may be, and b. claims received by the Resolution Professional under Section 102 within 30 days from the date of the notice. VI. The debtor shall prepare a repayment plan under Section 105, in consultation with the Resolution Professional, containing a proposal to the Creditors for restructuring of his debts or affairs. The repayment plan may authorize or require the Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
