IN THE NATIONAL COMPANY LAW TRIBUNAL
MUMBAI BENCH, COURT - II
I.A. No. 609 of 2022
IN
CP (IB) No. 1191/(MB) 2021
Under Section 10A of the Insolvency and
Bankruptcy Code, 2016.
Deserve Exim Private Limited
Having address at: Deserve, CST Road
Junction,
Opposite
University
of
Mumbai Premises, Kalina, Santacruz
(East), Mumbai- 400 098.
…..Applicant
In the matter of
YES Bank Limited
… Financial Creditor
Vs
Deserve Exim Private Limited
… Corporate Debtor
Order delivered on: 10.02.2023
Coram:
Hon’ble Member (Judicial) :
Justice P.N. Deshmukh (Retd.)
Hon’ble Member (Technical) :
Mr. Shyam Babu Gautam
Appearances:
For the Applicant/ Corporate Debtor : Senior Advocate N.H. Seervai
For the Financial Creditor
: Senior Advocate Gaurav Joshi
IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH, COURT-II
I.A No. 609 of 2022
IN
CP (IB) 1191/MB/2021
Page 2 of 8
ORDER
Per: Justice P.N. Deshmukh, Member Judicial
1. This is an Application filed by the Applicant, Deserve Exim Private
Limited, the Corporate Debtor in C.P. No. 1191 of 2021, seeking
dismissal of the said Petition filed under Section 7 of the Insolvency
and Bankruptcy Code, 2016 (hereinafter referred to as “the Code”) and
praying for the following reliefs:
a. This Hon’ble Tribunal be pleased to allow this application and dismiss
the above Company Petition in view of the provisions of Section 10A
of the Insolvency and Bankruptcy Code, 2016
b. for costs of the present Application and;
c. for such further reliefs as this Hon’ble Tribunal may be pleased to grant
in the facts and circumstances of the present case.
2. The Financial Creditor filed a Petition being C.P. No. 1191 of 2021
under Section 7 of the Code against the Corporate Debtor for initiating
Corporate Insolvency Resolution Process (CIRP) as the Corporate
Debtor defaulted in making repayment of an aggregate amount of Rs.
888,94,94,865/- Only (Rupees Eight Hundred and Eighty-Eight
Crores Ninety-Four Lakhs Ninety-Four Thousand Eight Hundred and
Sixty-Five Only). A brief background of the case is as follows. The
Financial Creditor advanced Term Loans to two borrowers namely, (i)
Radius & Deserve Builders LLP (“Borrower 1”) and (ii) Raghuleela
Builders Pvt Ltd (“Borrower 2”) (both collectively called “the Original
Borrowers”). A combined amount of Rs. 800,00,00,000/- (Rupees
Eight Hundred Crores) was advanced to the Original Borrowers. The
IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH, COURT-II
I.A No. 609 of 2022
IN
CP (IB) 1191/MB/2021
Page 3 of 8
Corporate Debtor in the instant case executed two Deeds of Guarantee
dated 2nd June 2015 thereby guaranteeing the due repayment of the
loans sanctioned to the Original Borrowers. Subsequently, the
Borrower 1 and Borrower 2 committed defaults in making repayments
on 1st August 2019 and 1st February 2019 respectively and the Financial
Creditor declared their accounts as Non-Performing Asset (NPA) on
31st October 2019 and 2nd May 2019 respectively. As a result of this, the
Financial Creditor invoked the Guarantee of the Corporate Debtor on
7th August 2020 and 26th June 2020 respectively. Yet the outstanding
amounts remained unpaid by the Corporate Debtor and hence, the
Financial Creditor filed the said Petition on 24th November 2021.
3. The Applicant i.e. the Corporate Debtor submits that the Deeds of
Guarantee were invoked on 7th August 2020 and 26th June 2020
respectively and that the date of default with respect to the Applicant
has to be reckoned as the date of invocation of the Corporate
Guarantees. Therefore, any purported default of the loans advanced
would be squarely covered by Section 10A of the Code. Furthermore,
the two guarantees in question are explicitly ‘on demand’ guarantees,
i.e. they require a demand to be made on the guarantor. The relevant
portion of the guarantees (both having identical wo