Subhash Aggarwal Vs State Bank of India (NCLAT Delhi)
NCLAT Delhi held that resignation from directorship of Corporate Debtor not a sufficient ground leading to revocation of his personal guarantee. Accordingly, application u/s. 95 of the Insolvency and Bankruptcy Code rightly admitted for failure of repayment in respect of their guarantee obligation.
Facts- The present appeal filed under Section 61 of Insolvency and Bankruptcy Code 2016 by the Appellant arises out of the Order dated 01.02.2024 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-II) in I.A. No. 5300/ND/2022 in Company Petition (IB) No. 491/ND/2022. By the impugned order, the Adjudicating Authority has allowed the application filed under Section 95 of the IBC by the Respondent Bank for initiating insolvency resolution of the Appellant-Personal Guarantor. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant-Shri Subhash Aggarwal.
Conclusion- Held that the Adjudicating Authority has rightly concluded that simply because the Appellant had resigned from the Directorship of the Corporate Debtor, this cannot be sufficient ground leading to revocation of his personal guarantee or discharge from his surety obligations arising out of the Deed of Guarantee of 2009 which was a continuing guarantee.
The grant of loan facilities to the Corporate Debtor by the Respondent Bank and in consideration thereof, the execution of the Deed of Guarantee of 2009 by the Appellant is a factum not in dispute. No material has been placed on record to substantiate discharge of the Appellant in respect of the above guarantee obligation tendered by the Appellant. We also cannot be unmindful of the fact that the Respondent Bank in their objections filed before the Adjudicating Authority on the initial report of the RP filed under Section 99 of IBC had clarified that the Respondent Bank had not been in a position to produce the Guarantee Deed of 2009 as the same was not readily traceable because this account was originally lying with erstwhile State Bank of Bikaner and Jaipur which later merged with SBI-Respondent Bank w.e.f. 01.04.2017. Merely because the Guarantee Deed of 2009 was not filed with the Section 95 petition but produced subsequently, will not come to the rescue of the Appellant in making out a case for discharge of the guarantee obligations of the Appellant. The failure of repayment on the part of the Appellant in respect of their guarantee obligation qua the Respondent Bank also not being in dispute, the Adjudicating Authority had committed no error in admitting the Section 95 petition.
