Mr. Aashish Avarsekar vs State Bank Of India Through Resolution ...

IN THE MATTER OF: Ashish Kishore Avarsekar ...Appellant

Versus

State Bank of India Through Resolution Professional Mr. Surya Pratap Gupta ...Respondent

Present: For Appellant: Mr. Ankush Mahajan and Mr. Sanjiv Punalekar, Advocates.

For Respondent: Mr. Ayush J. Rajani and Ms. Khushboo Rajani, Advocates.

ORDER

(Virtual Mode)

22.07.2022: Heard learned counsel for the Appellant. This Appeal has

been filed against the order dated 25.03.2022 passed on an application under

Section 95 of the I&B Code filed by the State Bank of India by which order the

Adjudicating Authority (National Company Law Tribunal), Mumbai Bench-IV

has admitted the application against the Appellant who is a Personal

Guarantor of the Corporate Debtor.

2. Appellant has executed Deed of Personal Guarantee dated 24.01.2013

guaranting the debt of Corporate Debtor which fact was never disputed.

Learned counsel for the Appellant submits that the Appellant subsequently

resigned and has never acknowledged the debt and although the debt was

restructured subsequently, in restructuring the debt he was not a party and

Cont'd.../ 2

the guarantee cannot continue as on date to enable the Bank to file

Application under Section 95 against the Appellant. Learned counsel for the

Appellant submits that by acknowledgment in 2018 he has only

acknowledged Share Pledge Agreement and has not acknowledged the

guarantee dated 24.01.2013.

3. The Adjudicating Authority in Para 5(c) has noted few clauses of the

guarantee. Para 5(c) is as follows:-

"c. The RP submits that, the Deed of Personal Guarantee dated 24.01.2013 executed by Mr. Aashish Avarsekar guaranting the debt of Corporate Debtor is an undisputed fact which has been expressly admitted by the Personal Guarantor. The RP has relied upon Clause 3, Clause 6, Clause 11, Clause 14 and Clause 16 of the Deed and submits that:

i. The Guarantee is continuing in nature; ii. The Guarantee is unconditional and binds the Guarantor irrespective of any changes in sanction limits, change in management or variation to the terms of the contract, forbearance etc."

4. The mere fact that subsequently the debt was restructured shall not

absolve the Appellant from its guarantee even if there is no acknowledgment

of the guarantee subsequently by the Appellant and in view of the guarantee

being continuing, the Bank was entitled to revoke the guarantee. The

Adjudicating Authority in Para 9 to 13 has noted facts of invocation of the

Company Appeal (AT) (Insolvency) No. 788 of 2022 3

guarantee and fact that the guarantee is continuing. We are of the view that

no error has been committed by the Adjudicating Authority in admitted the

Application under Section 95. There is no merit in this Appeal. The Appeal is

dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 788 of 2022