IFCI Limited vs Shri Ramesh Chandra Bardia

Per: Harish Chander Suri, Member (Technical)

The Court convened via video conference.

Under consideration is an Application C.P.(IB)/318/KB/2021 filed by the Applicant under section 95(1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC, 2016”) read with rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 (hereinafter referred to as “IB Rules, 2019”) and regulation 4(2) of IBBI (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019 (hereinafter referred to as “IB Regulations, 2019”) for initiating the Insolvency Resolution Process (hereinafter referred to as “IR Process”) against Mr. Shri Ramesh Chandra Bardia, Personal Guarantor for EMC Limited [CIN: U31901WB1953PLC021044 (Amalgamated); U70100WB2010PLC151197 (Active)] (hereinafter referred to as “EMC”) demanding total debt of Rs.247,50,97,663.26 as on 14/06/2020.

The factual matrix of the case is that the Applicant is a Company within the meaning of the Companies Act, 2013 and having its Registered Office at IFCI Tower, 61, Nehru Place, New Delhi 110019 and one of its Regional Office at Chatterjee International Centre (3^rd Floor), 33-A, Jawaharlal Nehru Road, Kolkata 700 071 under Shakekspeare Sarani Police Station.

The Principal Borrower “EMC” and guarantor had approached the applicant seeking grant of various Credit Facilities. On the representations made by the “EMC”, the Applicant had extended various Credit facilities from time to time for its business purpose. As per the Credit Facilities, “EMC” was obliged to repay the principal sum of Credit along with interest thereon in accordance with repayment schedule as set out in the agreements. For the aforesaid Credit facilities, Deed of Guarantees were executed by the respondent – personal guarantor towards security for due repayment of the loans and advances granted to principal debtor with interest, cost and expenses from time to time. The “EMC” and the respondent/personal guarantor had failed and/or neglected to make payment as per terms of the said Agreements. That due to failure of the Corporate Debtor to comply the terms and conditions of the loan accounts, the said loan accounts have been classified as NPA on 30/09/2018.

The Applicant has issued ‘notice of invocation’^{11.Annexure ‘1-D’ at pages 85 to 89 of the petition} dated 03/01/2019 to the respondent-personal guarantor invoking the personal guarantee. However, respondent-personal guarantor has failed to pay the invoked amount. Thereafter, on 13/07/2020 the Applicant has issued a Demand Notice in Form B^{22.Annexure ‘1-E’ at pages 90 to103 of the petition} under Rule 7(1) of the IB Rules, 2019 demanding payment of Rs.247,50,97,663.26.

“EMC” (Corporate Debtor) was admitted under CIRP by the National Company Law Tribunal, Kolkata Bench vide order^{33.Annexure ‘1-T’ at pages 404 to 416 of the petition} dated 12/11/2018 passed in CP(IB)/1237(KB)2018 (Beni Gopal Singhi -vs- EMC Limited) and resolution plan has already been approved.

The personal guarantor, viz., Sri Ramesh Chandra Bardia, had executed personal guarantees on 26/09/2014^{44.Annexure ‘1-J’ at pages 184 to 197 of the petition} and 23/03/2015 ^{55.Annexure ‘1-P’ at pages 328 to 340 of the petition}in favour of the Applicant to secure the repayment of the principal amount of the Credit Facilities together with all interest, additional interest, liquidated damages, premium on repayments, reimbursement of all costs, charges and expenses and all other obligations payable by “EMC” in respect of the Facility Agreements.

In this factual conspectus, the applicant prays for initiation of insolvency resolution process, against the respondent/personal guarantor.

Ld. Counsel appearing for the respondent-personal guarantor has raised question on the point of maintainability of this petition as per section 60(2) of the IBC, 2016, since the resolution plan in this matter has already been approved by this Adjudicating Authority and the Corporate Debtor is no longer presently either under CIRP or in liquidation.

We have discussed in details on these aspects in our order dated 14/01/2022 passed in CP(IB)/210(KB)2021 (State Bank of India -vs- Shri Manoj Toshniwal) before admitting the petition u/s. 95(1) of the IBC, 2016.

It is made known to everyone that on filing this Application by the Applicant/Creditor the interim-moratorium commences in terms of section 96(1)(a) of IBC, 2016.

The Applicant/Creditor has proposed name of Mr. Ashok Kumar Agarwal, an Insolvency Professional, having Registration No. IBBI/IPA-002/IP-N00626/2018-2019/11898, of Ashwini – D/4, Neelachal Abasan Co-operative Society Limited, 98, Rajdanga Gold Park, Kasba, E.K.T., Kolkata 700107, West Bengal, e-mail address: ashok.agarwal@singhiipsolutions.com, telephone no. 9831060452 for appointment as Resolution Professional. Mr. Ashok Kumar Agarwal has given his written consent^{66.Annexure ‘I-U’ at pages 417 to 419 of the petition} in Form A along with Authorisation for Assignment valid till 01/12/2021 in Form B. Therefore, we are appointing Mr. Ashok Kumar Agarwal as Resolution Professional in exercise of the power conferred under section 97 of the IBC, 2016 on this Authority subject, however, to his possessing a valid Authorisation for Assignment (AFA) issued by the Insolvency Professional Agency (IPA) of which he is a professional member, in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2019. The Resolution Professional is directed to file declaration within seven days from the date of receiving this Order to the effect that he fulfils all the requirements for being appointed as Resolution Professional in the matter.

The Resolution Professional shall exercise all the powers as enumerated under section 99 of the IBC, 2016 read with the Rules made thereunder. He is directed to make the recommendations for acceptance or rejection of this Application within the stipulated time as envisaged under section 99(1) of the IBC, 2016. The RP shall give a copy of the report under sub-section (7) of section 99 of IBC, 2016 to the Applicant, as soon as the same is filed before this Adjudicating Authority.

The Counsel on record for the Applicant is hereby directed to serve the copy of this Order along with copy of the Application and documents on the Resolution Professional by all available modes for information and compliance. Proof of service shall be filed with this Bench for record.

List this matter on 01/08/2022.

The Registry is hereby directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

Certified Copy of this order be issued, if applied for, upon compliance of all requisite formalities.