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Judgment
Per: JUSTICE RAMALINGAM SUDHAKAR, Hon’ble PRESIDENT
This application has been filed under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 against the Personal Guarantors of Dharani Sugars & Chemicals Limited, the Corporate Debtor which is under Corporate Insolvency Resolution Process (CIRP).
In so far as Dharani Sugars & Chemicals Limited is concerned an order was passed for CIRP of the Corporate Debtor by this Tribunal on 29.07.2021 in IBA/976/2019.
The present application is filed by the South Indian Bank, Chennai Corporate Branch, represented by Assistant General Manager Mrs.S.Karthika, duly authorized by Deputy General Manager, Regional Office, South Indian Bank, Chennai dated 17.02.2021, against the personal guarantors of the Corporate Debtor under CIRP.
It is stated in Part – III of the Application that demand was made on the personal guarantor on 20.08.2020. It is also seen from Part – III at Sl. No. 13 of the Application that the Personal Guarantor has executed the Deed of Guarantee on 16.03.2015, 28.09.2015, and 16.04.2016. All these Deed of guarantees are enclosed along with the typed set filed along with the Application.
The Demand Notice issued under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 to the Personal Guarantor on 20.08.2020 is also placed on record at Pg. Nos. 223 – 225 and acknowledgement of receipt is placed at Page No. 225A.
The last date of default as mentioned in the application is 30.11.2019 and the Financial Creditor has also placed on file the Record of Default at Page Nos. 30 to 57 at Annexure A2. Hence, on this term, the present Petition is filed to initiate a proceeding in terms of Section 95 (1) of the IBC, 2016, against the Respondent herein.
The Learned Counsel for the Respondent had filed a counter wherein it was submitted that the present application is liable to be dismissed on the ground of maintainability.
All the defences raised by the Respondent Personal Guarantor will be considered at the time when the RP files his report under Section 99 of IBC, 2016 and when the matter is taken up for admission or rejection under Section 100 of IBC, 2016.
The Hon’ble NCLAT, Principal Bench, in the matter of Mr. Ravi Ajit Kulkarni –Vs- State Bank of India in Company Appeal (AT) (Insolvency) No. 316 of 2021 has held in para 42 that once an Application under Section 95 of IBC, 2016 is filed, the Adjudicating Authority has to act on it, and following principles of natural justice, give limited notice to Personal Guarantor to appear referring to the Interim Moratorium that has commenced as per terms of Section 96 and subsequently proceed to the next stage of appointing Resolution Professional as per Section 97 read with attendant Rules and Regulations.
It can be seen from Part- IV of the Application that one Mr. Ramakrishnan Sadasivan [IBBI/IPA-001/IP-P00108/2017-18/10215] (email id: [email protected]) has been recommended by the Financial Creditor to be the IRP. However from the IBBI website it can be seen that the said RP does not have a valid AFA as on date. Therefore, we hereby appoint Mr. C. Prabakaran with Reg. No. IBBI/IPA-001/IP-P01596/2018-2019/12444 (email id: [email protected]) as the Interim Resolution Professional in respect of the Personal Guarantor viz. Mr. Dr.Palani G. Periyasamy.
The Financial Creditor is also directed to serve a copy of this Application to the Interim Resolution Professional for preparing the Report under Section 99 of IBC, 2016.
The Resolution Professional is required to examine the Application as set out in Section 97(6) of IBC, 2016 and after examining the Application, as per Section 97(7) of IBC, 2016 the Resolution Professional may recommend for the acceptance or rejection of the Application in his report, within a period of 10 days as contemplated under Section 99(1) of IBC, 2016.
Post this matter on 25.07.2022 for filing of Report by the Interim Resolution Professional.