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 2^nd 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 1^st August 2019 and 1^st February 2019 respectively and the Financial

Creditor declared their accounts as Non-Performing Asset (NPA) on

31^st October 2019 and 2^nd May 2019 respectively. As a result of this, the

Financial Creditor invoked the Guarantee of the Corporate Debtor on

7^th August 2020 and 26^th June 2020 respectively. Yet the outstanding

amounts remained unpaid by the Corporate Debtor and hence, the

Financial Creditor filed the said Petition on 24^th November 2021.

3. The Applicant i.e. the Corporate Debtor submits that the Deeds of

Guarantee were invoked on 7^th August 2020 and 26^th 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