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Judgment
ORDER
PER: SH. L. N. GUPTA, MEMBER (T)
The present IA No. 6037 of 2022 has been filed by Mr. Paban Kumar Jain, Resolution Professional (hereinafter referred to as the ‘Applicant/Resolution Professional), enclosing therewith its report/recommendation regarding the initiation of the IR process against Mr. Sourabh Goel (hereinafter referred to as the Respondent/Personal Guarantor) under Section 99 of IBC, 2016.
To put the facts succinctly, the underlying main Petition CP (IB)-411/ND/2022 was filed by The Karur Vysya Bank Limited against the Personal Guarantor namely, Mr. Sourabh Goel under Section 95 of IBC, 2016, to initiate IR process. Vide order dated 06.09.2022, this Adjudicating Authority had appointed Mr. Paban Kumar Jain as a Resolution Professional (RP) of the Personal Guarantor and directed the Applicant/RP to file its report under Section 99 of IBC, 2016.
In compliance with the order dated 06.09.2022 passed by this Adjudicating Authority, the Applicant/RP vide present IA-6037/2022 has filed its Report under Section 99 of IBC, 2016, recommending admission of the application in respect of the Respondent/Personal Guarantor.
The Applicant/RP in its report has stated the following in support of its recommendation for admission of the Section 95 Application -
The Respondent/Personal Guarantor Mr. Sourabh Goel has committed a default in making the payment of the indebted amount of Rs.1,86,86,10,626.97/- to The Karur Vysya Bank Limited, Creditor for which he has given the personal guarantee for credit facility availed by M/s Mahesh Industries Private Limited (Corporate Debtor).
The loan facility was guaranteed by the Deed of Guarantee dated 21.08.2015 by the personal guarantors including Mr. Sourabh Goel. Further, the obligations of the Personal Guarantors are “jointly and severally” and independent of the Corporate Debtor’s obligations. Thus, the Personal Guarantor undertook to guarantee the obligations of the Corporate Debtor under the loan agreement.
The Karur Vysya Bank had invoked the guarantee by issuing a “Demand Notice dated 19.04.2017” under SARFAESI Act, 2002.
The Karur Vysya Bank has also issued a Statutory Demand Notice in Form B under Section 95(4) (b) of IBC, 2016 to the Respondent/ Personal Guarantor vide Speed post, which could not be served. Therefore, the applicant has made the publication of the notice by substituted service in newspapers namely “Jansatta” in Hindi and “Financial Express” in English on 14.05.2022.
It is further stated by the Applicant while verifying the debt outstanding to be received by the Creditor from Personal Guarantor, it was observed that the amount outstanding as of 19.04.2017 was different from the amount appearing in the statement of Accounts of Creditor. Hence the RP/Applicant requested the Bank for reconciliation of the amount.
In response to the same, the Creditor shared with the Applicant, the Revised Interest Calculation Sheet on 01.12.2022 along with the Statement of Account of Debts in the Books of the Creditor. As per the revised calculation sheet shared by the creditor, there is an outstanding balance of Rs 173,10,84,470.77/- as of 30.04.2022 which is in default. Based on this examination of the Interest Sheet and Statement of Account the debt in default is reduced from Rs.186,86,10,626.97/- to Rs.173,10,84,470.77/.
The RP/Applicant has further stated that it has made the following compliances in terms of Section 99 of IBC, 2016.
Vide order dated 16.12.2022, this Adjudicating Authority had issued notice to the Respondent for filing Reply/Objections to the Report of the RP filed under Section 99 of IBC, 2016. However, no one represented the Respondent/Personal Guarantor. Accordingly, Respondent/Personal Guarantor was proceeded ex-parte vide order dated 24.01.2023
We heard the submissions of the Applicant and perused the Report received under Section 99 of IBC, 2016 by the Applicant/RP recommending admission of the Section 95 Application and initiation of the IR process against the Personal Guarantor. Since the Respondent/Personal Guarantor is proceeded ex-parte, therefore, it is presumed that it has nothing to say/respond to in the matter.
On perusal of the report, it is observed that the Respondent/Personal Guarantor had committed default in payment of the dues towards Karur Vysya Bank for whom it has given Guarantee on behalf of M/s Mahesh Industries Private Limited (the Corporate Debtor) vide guarantee deed dated 21.08.2015.
Further, the Creditor/Karur Vysya Bank has served the Demand Notice under Section 95(4)(b) to the Respondent/Personal Guarantor by substituted service through publication in the newspapers on 14.05.2022. The Creditor has also invoked the guarantee by issuing its notice dated 19.04.2017. Hence, there is sufficient material on record, which establishes the default committed by the Respondent/Personal Guarantor and we have no reason not to accept the recommendation of the Applicant/ Resolution Professional. In view of the aforementioned, we accept the report of the RP filed by him under Section 99 of the IBC, 2016, and admit the CP (IB)-411/ND/2022 filed by the Creditor and accordingly, order initiation of the IR process in respect of Sh. Sourabh Goel, Respondent/Personal Guarantor with immediate effect.
As a sequel of admission of the present application, a moratorium under Section 101 of IBC, 2016 shall commence in relation to all the debts of the Respondent/Personal Guarantor. During the moratorium period –
Any pending legal action or proceedings in respect of any debt qua the Respondent shall be deemed to have been stayed;
the creditors shall not initiate any legal action or legal proceedings in respect of any debt qua the Respondent; and
the Respondent shall not transfer, alienate, encumber, or dispose of any of the assets or his legal right or beneficiary interest therein. The moratorium shall cease to have effect at the end of the period of 180 days.
A public notice shall be issued by the RP, within seven days of passing of this order, inviting claims from all creditors within 21 days of such notice. The notice shall include details of the present order, particulars of the Resolution Professional with whom the claims have to be registered, and the last date for the submission of the claims. The said notice shall be –
published in English and one Vernacular Language newspaper which is in circulation in the State where the debtor resides;
affixed in the premises of this Adjudicating Authority; and
placed on the website of the Adjudicating Authority.
The RP shall discharge all such duties as are incumbent upon him in terms of the provisions of Sections 104, 105, 106, 107, 108, 112, and 113 of IBC, 2016, with due deference to the procedure enshrined in Regulations 5, 7, 8, 9, 11, 12, 13, 14, 15 and 17 of IBBI (Insolvency Resolution Process for Personal Guarantor to Corporate Debtors) Regulations, 2019 and also in terms of the other extent provisions of the aforementioned code/ regulations and/or any other provisions of law applicable to him, in the discharge of his duties as RP.
A copy of this order along with a copy of the application as also the report of the Resolution Professional shall be provided to the Creditor (Applicant), Respondent/Personal Guarantor, and IBBI, by the Registry/Court Master within 7 days from today by e-mail.
The present order shall remain subject to the order to be passed by the Hon’ble Supreme Court in W.P.C. No. 307/2022.
IA 6037/ND/2022 is disposed of accordingly. To come up for consideration of status report to be filed by RP, within 8 weeks.