State Bank of India VS Mamta Apparao CP IB 101 of 2021
Facts:
1) Application filed under Section 95 of the Insolvency and Bankruptcy Code. 2016 (hereinafter referred to as IBC, 2016″) read with Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (‘PG AAA Rules’) by State Bank of India (hereinafter referred to as “Financial Creditor” or “SBI” or “Creditor”) for initiating the Personal Guarantor’s Insolvency Resolution Process (‘PGIRP’) against Ms. Mamta Apparao (hereinafter referred to as “Personal Guarantor”). As stated in Part III of the Petition, the date on which the default occurred is March 20, 2019 and the amount in default is INR 372,59,92,769.82/- (Rupees Three Hundred and Seventy-Two Crores, Fifty-Nine Lakhs, NinetyTwo Thousand, Seven Hundred and Sixty-Nine and Eighty-Two Paise only) as on 31st August, 2020.
Issue: Whether the application can be admitted ?
Arguments:
Respondent:
1) Counsel submitted that deed of Guarantee dated 22nd May 2009, 07th December 2009, 09th August 2011, 13th January 2014, 12th February 2015 and 20th August 2015 at Exhibits 8(A) to 8(G) of the above-captioned Petition are either not stamped or insufficiently and inadequately stamped, and therefore, the aforesaid deeds are inadmissible in evidence as per the provisions of Section 34 of the Maharashtra Stamp Act, 1958.
2) It was submitted that respondent being a suspended director has no access to the data/information and repayment details of the alleged outstanding dues of the Petitioner Bank. Therefore, as such, the Respondent is not in a position to ascertain the repayment status of the loan in question.
Decision: NCLT admitted the application.
Rationale:
1) Hon’ble NCLT noted that Corporate Insolvency Resolution Process of the Corporate Debtor came to be initiated u/s 9 of the Code vide Order dated 24.04.2019 passed by this Bench in CP(IB) No. 54/2019. Thereafter, the Liquidation Process came to be initiated against the Corporate Debtor vide Order dated 26.09.2019 passed in M.A. No. 2716/2019 in CP(IB) No. 54/2019.
2) It noted that Thus, the default on the part of the Corporate Debtor gave a cause of action to the Petitioner to invoke the personal guarantee furnished by the Respondent pertaining to the financial debts owed by the Corporate Debtor to the Petitioner. Even otherwise, under Section 128 of the Indian Contract Act, 1872, the liability of surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.
3) It held that in view of the provisions of Section 30 of the Maharashtra Stamp Act, 1958, unequivocally, in the present case, the liability to pay the stamp duty on the above-referred Deeds of Guarantee is on the Respondent and not the Petitioner. Therefore, if the Respondent herself has not paid sufficient stamp duty on the above-referred Deeds of Guarantee, she cannot now resist this Petition on the ground that the aforesaid deeds have not been sufficiently stamped, as it is a settled proposition in law that no party to the Lis can be permitted to take advantage of his own wrongs
4) It held that what is required to be seen at this stage is whether there is a default on the part of the Personal Guarantor, and in the present case, the same has been satisfactorily established from the pleadings of the parties and the documents other than the deeds of guarantee available on record, which do not require any stamping per se. Accordingly, the objections taken by the Respondent with respect to the admissibility of the Deeds of Guarantee as evidence on account of deficient stamping are irrelevant while adjudicating this petition.
order:
