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Naresh Kumar Goel vs Indian Overseas Bank & Anr

National Company Law Appellate Tribunal9 January 2024Ashok Bhushan

Ratio decidendi

The rule this decision rests on

The assets of a surety who has furnished a bank guarantee to a third party are separate from those of the corporate debtor on whose behalf the guarantee was given, so proceedings directed at the surety's assets are not for that reason to be treated as affecting the corporate debtor's insolvency estate, and a liquidator's application seeking such relief against the bank holding the surety's margin money may be dismissed on that basis.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No.14 of 2024& I.A. No.05 of 2024IN THE MATTER OF:

Naresh Kumar Goel Liquidator of B.R. Knitwears Pvt. Ltd. ...Appellant

Versus

Indian Overseas Bank & Anr. ...Respondents

Present: For Appellant: Mr. Ashok Kumar Juneja, Advocate with Mr. Naresh Kumar Goel, Liquidator in person. For Respondents:

ORDER

(Hybrid Mode)

09.01.2024: This Appeal has been filed against the order dated

20.07.2023 passed by the Adjudicating Authority on I.A No.924 of 2020. IA

was filed by the Liquidator seeking direction to Respondent No.1 to make a

fresh FDR of Rs.10,00,308/- as 100% margin against the Bank Guarantee.

2. The Adjudicating Authority after hearing the Liquidator, noted the

submissions of Respondent No.2 - Customs Department to whom the Bank

Guarantee in respect of EPCG license was given by the Corporate Debtor. The

Adjudicating Authority relying on the judgment of this Tribunal in "Bharat

Aluminium Co. Ltd. vs M/s. J.P. Engineers Private Limited, Company

Appeal (AT) (Insolvency) No. 759 of 2020" held that the assets of the surety

are separate from those of the Corporate Debtor and proceedings against the

Corporate Debtor may not be seriously impacted by the actions against assets

Cont'd.../ -2-

of a third party like a surety. Relying on the said judgment the application

filed the Liquidator has been dismissed.

3. We do not find any error in the decision of the Adjudicating Authority

dismissing the application filed by the Liquidator (Appellant herein). Appeal

is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.14 of 2024

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