Laxmi Pat Surana vs Union Bank Of India

[Arising out of Order dated 06.12.2019 passed by National Company Law Tribunal, Kolkata Bench, Kolkata in C.P (IB)No. 346/KB/2019]

IN THE MATTER OF:

Laxmi Pat Surana Promoter/Director and Shareholder of Surana Metals Limited. S/o Late Hem Raj Surana Aged about 70 years Residing at 109/3, Hazra Road, Kolkata-700026 ...Appellant

Versus

1.Union Bank of India, Having its registered and Head Office At 239, Vidhan Bhawan Marg, Nariman Point, Mumbai-400021

2. Sunil Mohan Acharaya The Interim Resolution Professional of Surana Metals Limited, Having its registered office at 245/1, Bhattacharya Para 6, Jheelpur Road Ward No. 15, New Barrackpore North 24 Parganas Kolkata -700131 ...Respondents

Present: For Appellant: Mr. Abhijeet Sinha, Mr. Aditya, Mr. Sandeep Nagar, Mr. Kamesh Vedula, Advocates

For Respondents: Ms. Nishi Chaudhary, Mr. Yashartha, Ms. Priya Choubey, Advocates Mr. Sunil Mohan Acharya,RP 2

JUDGEMENT

Venugopal M., J :

1. The Appellant (Promoter/Director and Shareholder of Surana Metals Ltd.)

has focused the present Company Appeal being dissatisfied with the

impugned order dated 6.12.2019 in C.P (IB)No.346/KB/2019 dated

6.12.2019 passed by the Adjudicating Authority (National Company

Law Tribunal) Kolkata Bench.

2. The Adjudicating Authority in the impugned order dated 6.12.2019 at

paragraph 8 to 10 had observed following:

8. " Ld. Counsel for the Corporate Debtor submitted that claim is time barred. He pointed out date of default as 03.01.2010 and this proceeding is filed on 13.02.2019. According to him, it is time barred in view of the Hon'ble Supreme Court Ruling in case of Gaurav Hargovindbhai Dave V/s. Asset Reconstruction Company (India) Ltd. &Anr. (Civil Appeal No. 4952 of 2019.)"

9. "We have gone through the Ruling. We hold that this Ruling is not applicable in this case. In case before Hon'ble Supreme Court, the facts were after the date of default in the year 2011, there was no acknowledgment of debt by the Corporate Debtor in that proceeding. In this case, after the default in the year 2010, not only original borrower but also the Corporate Debtor admitted and acknowledgement the debt even in the year 2018. This proceeding is filed within period of limitation."

10. "Ld. Counsel for the Corporate Debtor submitted that he cannot be the Corporate Debtor in view of the

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definition of corporate guarantor as stated in Section 5A of IBC,2016. According to him, since his client is guarantor to the individual and not corporate person, no proceeding can lie again his client under IBC,2016. We have considered about his above submission. Section 5A of IBC,2016 states Corporate Guarantor means the corporate person who is surety in contract guarantee to a Corporate Debtor. Section 3(8) of IBC defines Corporate Debtor means corporate person who owes a debt of any person. In this case, it is not in dispute that by virtue of deed of guarantee, the Corporate Debtor herein who is the corporate person owes a debt to the Bank. Hence, the Corporate definition in Section 5A of IBC, 2016 of corporate guarantor cannot be considered for exclusion of this proceeding from consideration for a simple reason that the definition is just explanatory definition as to who could be called as corporate guarantor. In this case, the corporate Debtor is the guarantor of the individual. He executed deed of guarantee in the year 2008. He thereby undertook to repay the debt in case of default by the original borrower. The definition of the corporate guarantor relied on by him in Section 5A cannot be used to show applicability or inapplicability of provisions of IBC against him as it is just explanatory definition. Hence, we reject his argument."

3. and resultantly held that the first Respondent/'Financial Creditor'

had proved that 'Financial Debt' was due and payable by the Corporate

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Debtor (M/s Surana Metals Ltd.) and that a default was committed in

paying the same.

4. Challenging the Validity and Legality of the impugned order dated

6.12.2019 passed by the Adjudicating Authority, the Learned Counsel for

the Appellant submits that the first Respondent/Bank /'Financial

Creditor' filed an application under Section 7 of the I&B Code and as per

Section 3(7) and 3(8) of the I&B Code, the application can be filed only

against Company and the same is not maintainable against the Sole

Proprietorship Firm(as in instant case) and as such what cannot be

performed directly, cannot be performed indirectly.

5. The Learned counsel for the Appellant contents that as per Section

5A of the I&B Code, 2016 to commence the insolvency proceedings

against the 'Corporate Guarantor', both the 'Principal Debtor' and

'Guarantor', must be Corporate entities/ Corporate Debtor, as defined

under Section 3(7) and 3(8) of the Code. Furthermore , the insolvency

proceedings cannot be initiated against the Sole Proprietorship Firm of

Debtor and therefore, the first Respondent/Bank cannot initiate the

'Insolvency proceedings' against the Appellant(Guarantor Company) too.

6. The Learned Counsel for the Appellant refers to the ' Report of the

Insolvency Law Committee' (March,2018 - Ministry of Corporate Affairs,

Company Appeal (AT) (Ins) No. 77 of 2020 5

Government of India) whereby and whereunder at Paragraph 23.1 it is

mentioned as under:

23.1 " Section 60 of the Code requires that the Adjudicating Authority for the corporate debtor and personal guarantors should be the NCLT which has territorial jurisdiction over the place where the registered office of the corporate debtor is located. This creates a link between the insolvency resolution or bankruptcy processes of the corporate debtor and the personal guarantor such that the matters relating to the same debt are dealt in the same tribunal. However, no such link is present between the insolvency resolution or liquidation processes of the corporate debtor and the corporate guarantor. It was decided that Section60 may be suitably amended to provide for the same NCLT to deal with the insolvency resolution or liquidation processes of the corporate debtor and its corporate guarantor. For this purpose, the term 'corporate guarantor' will also be defined."

7. The Learned Counsel for the Appellant points out that Section 5A of

the Code is clear, unequivocal and unambiguous and if the legislature

had enunciated to include the '(Corporate Guarantor)' in respect of a

person and Firm within the purview of the Section 7 of the Code the

same would have been provided in an explicit manner.

8. The Learned Counsel for the Appellant advances an argument that

the application filed by the first Respondent/Bank/ 'Financial Creditor'

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was barred by the plea of 'Limitation' and that the 'Account' was

admittedly declared as'Non-Performing Asset' on 30.10.2010 by the First

Respondent/Bank and that the application under Section 7 of the Code

was filed on 13.02.2019 i.e. after more than nine years.

9. The Learned Counsel for the Appellant points out that the letters

dated 03.03.2012, 27.05.2015, 24.10.2016 issued by the Principal

Borrower and produced by the first Respondent/Bank are not an

acknowledgment of 'Debt' by any stretch of imagination,Since there is no

admission of liability. In effect, the aforesaid letters do not start the fresh

period of Limitation under Section 18 of the Limitation Act,1963 as

averred by the Bank.

10. Expatiating his plea, the Learned Counsel for the Appellant comes

out with an argument that the acknowledgement must be made before

the expiry of the period of Limitation. Moreover, it is the stand of the

Appellant that the three letters were addressed by the Principal Borrower

i.e. Sole Proprietorship Firm and not by the Appellant and as such the

said communications are not binding upon the 'Appellant'/ 'Corporate

Guarantor'/ 'Surety'.

11. Yet another contention raised on behalf of the Appellant is that the

Letter dated 8.12.2018 is a 'Privileged Document' and the same was

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addressed as 'without prejudice' and as such the same isinadmissible

under the Indian Evidence Act,1872.

12.The Learned counsel for the Appellant submits that the first

Respondent/Bank had filed reply a before this Tribunal together with the

letter dated 3.12.2019 and the said Letter was not produced before the

Learned Adjudicating Authority (NCLT) Kolkata and hence the same is

not to be relied upon.

13. In response, the Learned Counsel for the first Respondent contends

that M/s Mahaveer Construction (Borrower) had borrowed money against

the payment of interest from the First Respondent/Bank and M/s

Surana Metals Ltd. is being registered under the Companies Act,2013.

Hence, the Plea is taken on behalf of the first Respondent/Bank that M/s

Surana Metals Ltd. comes within the purview of 'Corporate Debtor' and

the first Respondent/Bank comes within the ambit of 'Financial Creditor'

of M/s Surana Metals Ltd. '(Corporate Debtor)' and therefore, the

application under Section 7 of the Code filed by the first

Respondent/Bank is perfectly maintainable in law.

14. The Learned counsel for the first Respondent takes stand that the

Corporate Guarantor (M/s Surana Metals Ltd.) had duly executed the

Letters of the Guarantors dated 2.2.2007,17.2.2007 and 3.8.2008 in

respect of the loan facilities signed by the Bank to M/s. Mahaveer

Company Appeal (AT) (Ins) No. 77 of 2020 8

Construction, thereby comes within the purview of the definition

'Corporate Guarantor' as per section 5(A) of the I&B Code. Added

further, the 'Corporate Guarantor' had acknowledged its debt against

execution of the Letters of Guarantee and in its reply dated 8.12.2018 is

not against the demand notice dated 3.12.2018 issued by the Bank.

15. The Learned counsel for the first Respondent/Bank for Financial

Creditor submits that the limitation for filing of an application against

the 'CorporateGuarantor' begins from the acknowledgement i.e.

8.12.2018, furnished by the 'Corporate Guarantor'.

16. Continuing Further, the 'Corporate Guarantor' in its reply

admitted to the effect that loan of Rs. 945 Lakhs and Rs. 245 Lakhs was

sanctioned to you toM/s Mahaveer Construction of No. 12, Bonfield

Lane, Kolkata -700001....

Our Corporate Guarantee was issued in accordance with the provisions

of the Companies act, 1956 and as such the 'Corporate Guarantor' on

8.12.2018 had admitted the execution of guarantee agreements on

2.2.2007,17.2.2007,3.8.2008, whereby the'Corporate Guarantor' had

agreed to pay Rs. 12.05 Crores and interest on such amount.

17. The Learned Counsel for the Appellant emphatically takes a

forceful stand that the 'Corporate Debtor' as a 'Corporate Person' being

Company under the Companies Act,2013 and had given surety but in

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relation to a Contract or'Guarantor' orCorporate Debtor. Suffice it to

make a pertinent mention that the 'Corporate Debtor' had guaranteed

surety in regard to this Contract where Debtor firm was Proprietor

concern. Besides these, the Corporate Debtor cannot shirk hisliability to

pay the debt to the 'Financial Creditor'/Bank and also that the

Corporate Guarantor had taken 'Guarantee' in respect of Section 5(8) of

the Code and M/s Mahaveer Construction had borrowed the money

against the payment of interest from the bank.

18. The Learned counsel for the First Respondent /Bank refers to the

judgement of this tribunal in Company Appeal (AT)(Insolvency) No. 538 of

2019.K.Paramasivam Vs. The Karur Vysya Bank Ltd. and Ors.Wherein at

paragraph 18 it is observed and held as under:

18. "Admittedly, the 'Borrowers' have borrowed the money against payment of interest from the Bank and M/s Maharaja Theme Parks and Resorts Private Limited has taken the 'guarantee' in respect of the item referred to in clause (a) of Section 5(8). In this background, we hold that the Bank comes within the meaning of 'Financial Creditor' of M/s Maharaja Theme Parks and Resorts Private limited ('Corporate Debtor'.) For the said reason, the application under Section 7 is maintainable."

19. The Learned counsel for the first Respondent/Bank pointed out

that the Corporate Debtor had acknowledged its debt against the

execution of the letters of Guarantee which runs as under:

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S.No. Acknowledgment Executed by Page no of the

Letter Dated Appeal

1. 16.09.2010 Laxmi Pat 196

Surana

2. 03.03.2012 Laxmi Pat 197

Surana

3. 27.05.2015 Laxmi Pat 140

Surana

4. 24.10.2016 Laxmi Pat 198

Surana

5. 08.12.2018 Surana Metals 141

Ltd.

Further, the Corporate Debtor had acknowledge that the reply dated

8.12.2018 sent against demand notice dated 3.12.2018 was issued by

the Bank for initiation of the proceedings under the Code. In this

connection the Learned Counsel for the first Respondent refers to Section

145 of the Indian Contract Act,1872 to the fact that in every 'contract' of

'Guarantee', there is an implied promise by the 'Principal Debtor' to

indemnify the surety.

20. The Learned Counsel for the Appellant contends that the Appellant

is also the Proprietor of the firm of M/s Mahaveer Construction and that

the proprietorship Firm has no separate legal existence. It is not dispute

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that the term Loan No. - 1 was disbursed to an extent of Rs.

9,60,00,000/- on 11.9.2007 and the second term Loan was disbursed to

an extent of Rs. 2,45,00,000/- on 11.9.2008 and the total sum

disbursed was Rs.12,05,00,000/-.The Letter of Guarantee for Rs.

9,60,00,000/- was given on 2.02.2007, and on 17.02.2007, Letter of

Guarantee was issued by the Corporate Debtor. On 30.8.2008 the Letter

of Guarantee for Rs. 12,05,00,000/- was given on 30.8.2008 etc. By

means of 'Guarantee', to and in favour of the First Respondent/Bank,

Corporate Debtor under took to clear the Loan of the 'Principal

Borrower',in the event of the 'Principal Borrower' committed default and

it isthe primordial duty of the 'Corporate Debtor' to clear the due

amount.

21. In the instant case the Corporate Debtor (M/s Surana Metals Ltd.)

had duly executed the Letter of Guarantor dated 2.2.2007, 17.2.2007

and 3.8.2008 for the Loan facilities Sanctioned by the Bank to M/s

Mahaveer Construction also that the Corporate Debtor had acknowledged

its debt on 16.9.2010,3.3.2012,27.5.2015,24.10.2016, and executed by

the Appellant (Vide Page. No. 196,197,140,198) and on 8.12.2018

executed by the (M/s Surana Metals Ltd.) page no. 141 respectively

against the execution of the Letters of Guarantee. Significantly, the

Corporate Debtor in its Reply dated 8.12.2018 had tacitly admitted the

execution of Guarantors Agreement dated 2.2.2007,17.2.2007,3.8.2008

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in and by which the Corporate Debtor had agreed to pay Rs.

12,05,00,000/- crore and interest on such sum.

22. The 'Corporate Debtor' being a 'Corporate Person' and registered

under the Companies Act,2013 had Guaranteed 'Surety' in regard to

'Contract' with 'Debtor firm' or 'Proprietary concern' as the case may be.

As per Section 145 of the Indian Contract Act, 1872 in respect of every

'Contract of Guarantee', there is an implied Promise of the 'Principal

Debtor' to indemnify the 'Surety'.

23. It may not be out of place for this tribunal to make a relevant

mention that the 'Financial Debt' includes a 'Debt' owed to a Creditor by

a 'Principal' and 'Guarantor'. A just Omission or failure to pay on the part

of a Guarantor to pay the 'Financial Creditor', When the Principal sum is

claimed/demanded certainly, will come with the scope of 'Default' under

Section (3),(12) of the Code. The proceedings under Section 7 of the Code

can be triggered by a 'Financial Creditor' who had taken Guarantee in

respect of 'Debt' against 'Guarantor' for failure to repay the money

borrowed by the 'Principal Borrower'. To put it explicitly (Ms/ Surana

Metals Ltd.) is the 'Corporate Debtor' and that the Appellant is the

proprietor of the Firm of M/s Mahaveer Construction.

24.It is to be pointed out that 'Pendency of Debt recovery proceeding'

before Tribunal is not to prevent a financial creditor to initiate CIRP

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against Corporate Debtor. Be it noted that a legal remedy must be alive

for a legislatively fixed period of time as per decision N. Balakrishnan V/s

M. Krishnamurthy 1998 7 SCC Page 123.

25.In B.K. Educational services Ltd. V/s Parag Gupta and Associates

(Civil Appeal No. 23988/17) it is held that 'the right to sue therefore

accrues when a default takes place. If the default had occurred three

years before the date of filing of an application, the same will be barred

under Art.137 of the Limitation Act, 1963.

26.In the decision of Hon'ble Supreme Court Jignesh shah and Anr. V/s

Union of India &Anr. 2019 10 SCC 750 at paragraph 28 it is among other

things observed as under:

"Here again, the trigger point is the date on which

default is committed, on account of which the company

is unable to pay its debts. This again is a fixed date

that can be proved on the facts of each case. Thus,

Section 433(e) read with section 434 of the Companies

Act, 1956 would show that the trigger point for the

purpose of limitation for filing of a winding-up petition

under Section 433(e) would be the date of default in

payment of the debt in any of the three situations

mentioned in Section 434."

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27.In Gaurav Hargovind Bhai Dave V/s Asset Reconstruction Company

(India)Ltd. &Anr. 2019 10SCC 572 the Hon'ble Supreme Court has observed

that the Respondent was declare 'NPA' on 21.07.11 and Section 7

application was filed in 2017 while the I&B Code was brought into force on

1.12.2016 and held that Art.62 of the Limitation Act applies only to suits

and application filed under Section 7 falls within residuary Art. 137 of the

Limitation Act and further the three years period had lapsed, the application

under Section 7 was held to be time barred.

28. An Acknowledgment does not create any new right and it extends the

limitation period as per decision P. Sreedevi V/s P. Appu AIR 1991 Kerala76.

When a Debtor makes an acknowledgment of his liability to pay a Debt, it

would mean that he was admitting a subsisting liability to pay. The burden

lies on the Creditor to prove that an acknowledgment was made within time

as per decision Gursaran Shib Singh AIR 1943 All 393CFB. An

acknowledgment in writing must indicate Jural Relationship as that of

'Debtor' and 'Creditor' between the parties.

29. As far as the present case present case is concerned the pendency

of OA No. 310 of 2010 (filed on 14.7.2010) before the Debt Recovery

Tribunal -III Kolkata will not preclude the first Respondent/bank to file

the application under Section 7 of the Code before the Adjudicating

Authority.If a party claiming the benefit of the Section 14 of the Limitation

Act, 1963 had failed to secure relief in favour of earlier proceeding not

because of any defect or Jurisdiction or some other cause of like nature,

Company Appeal (AT) (Ins) No. 77 of 2020 15

he cannot derive the benefit of the ingredients of Section 14 of the Act. By

virtue of Deed of Guarantee Corporate Debtor being a'Corporate Person'

owes debt to the Bank.In the present case the 'Corporate Debtor' is the

Guarantor and in the year 2008, undertook to repay the debt in case of

default by the Principal Borrower. As per Section 3(8) of the Code

'Corporate Debtor' means a Corporate Person who owes debt of any

person.

30. In the light of detailed qualitative and quantitative discussions

aforesaid and also this Tribunal keeping in mind the present facts and

circumstances of the instant case in an integral fashion, which float on

the surface case comes to an inescapable conclusion that there is an

acknowledgment of 'Debt' on various dates like 2.2.07, 17.2.07, 3.8.07 for

the loan facilities availed by Mahaveer Construction the Letters of

Guarantee Acknowledged by the Corporate Debtor (M/s Surana Metals

Ltd.) on 16.9.10, 3.3.12, 27.5.15, 24.10.16 executed by the Appellant and

on 8.12.18 by the Surana Metals Ltd. etc. This apart, here is an

acknowledgment of Debt by the Principal Borrower but also the Corporate

Debtor on 27.5.15 & 8.12.18 respectively.The object of specifying time

limit for limitation is undoubtedly based on 'Public Policy'.The application

projected before the Adjudicating Authority(NCLT) Kolkata Bench, on

13.2.19 is well within limitation and not barred by Limitation. Looking at

from any angle, the present Appeal sans merits and the same is dismissed

without costs. The Appellant is directed to furnish the certified copy of the

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impugned order of the Adjudicating Authority within one week from today

and accordingly IA No. 199/2020 stands disposed of . IA No. 200/2020

stands closed.

[Justice Venugopal.M] Member(Judicial)

[V.P.Singh] Member(Technical)

[Alok Srivastava] Member(Technical)

19/03/2020

NEW DELHI

SR

Company Appeal (AT) (Ins) No. 77 of 2020