NATIONAL COMPANY LAW APPELLATE TRIBUNAL

NEW DELHI

Company Appeal (AT) (Ins) No. 77 of 2020

[Arising out of Order dated 06.12.2019 passed by National Company Law

Tribunal, Kolkata Bench, Kolkata in C.P (IB)No. 346/KB/2019]

IN THE MATTER OF:

Laxmi Pat Surana

Promoter/Director and Shareholder

of Surana Metals Limited.

S/o Late Hem Raj Surana

Aged about 70 years

Residing at 109/3, Hazra Road,

Kolkata-700026

…Appellant

Versus

1.Union Bank of India,

Having its registered and Head Office

At 239, Vidhan Bhawan Marg,

Nariman Point,

Mumbai-400021

2. Sunil Mohan Acharaya

The Interim Resolution Professional

of Surana Metals Limited,

Having its registered office at

245/1, Bhattacharya Para 6, Jheelpur Road

Ward No. 15, New Barrackpore

North 24 Parganas

Kolkata -700131

…Respondents

Present:

For Appellant: Mr. Abhijeet Sinha, Mr. Aditya, Mr. Sandeep Nagar,

Mr. Kamesh Vedula, Advocates

For Respondents: Ms. Nishi Chaudhary, Mr. Yashartha, Ms. Priya

Choubey, Advocates

Mr. Sunil Mohan Acharya,RP

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Company Appeal (AT) (Ins) No. 77 of 2020

J U D G E M E N T

Venugopal M., J :

1. The Appellant (Promoter/Director and Shareholder of Surana Metals Ltd.)

has focused the present Company Appeal being dissatisfied with the

impugned order dated 6.12.2019 in C.P (IB)No.346/KB/2019 dated

6.12.2019 passed by the Adjudicating Authority (National Company

Law Tribunal) Kolkata Bench.

2. The Adjudicating Authority in the impugned order dated 6.12.2019 at

paragraph 8 to 10 had observed following:

8. “ Ld. Counsel for the Corporate Debtor submitted

that claim is time barred. He pointed out date of default

as 03.01.2010 and this proceeding is filed on

13.02.2019. According to him, it is time barred in view

of the Hon’ble Supreme Court Ruling in case of Gaurav

Hargovindbhai

Dave

V/s.

Asset

Reconstruction

Company (India) Ltd. &Anr. (Civil Appeal No. 4952 of

2019.)”

9. “We have gone through the Ruling. We hold that

this Ruling is not applicable in this case. In case before

Hon’ble Supreme Court, the facts were after the date of

default in the year 2011, there was no acknowledgment

of debt by the Corporate Debtor in that proceeding. In

this case, after the default in the year 2010, not only

original borrower but also the Corporate Debtor admitted

and acknowledgement the debt even in the year 2018.

This proceeding is filed within period of limitation.”

10. “Ld. Counsel for the Corporate Debtor submitted

that he cannot be the Corporate Debtor in view of the

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Company Appeal (AT) (Ins) No. 77 of 2020

definition of corporate guarantor as stated in Section

5A of IBC,2016. According to him, since his client is

guarantor to the individual and not corporate person, no

proceeding can lie again his client under IBC,2016. We

have considered about his above submission. Section 5A

of IBC,2016 states Corporate Guarantor means the

corporate person who is surety in contract guarantee to

a Corporate Debtor. Section 3(8) of IBC defines

Corporate Debtor means corporate person who owes a

debt of any person. In this case, it is not in dispute that

by virtue of deed of guarantee, the Corporate Debtor

herein who is the corporate person owes a debt to the

Bank. Hence, the Corporate definition in Section 5A of

IBC, 2016 of corporate guarantor cannot be considered

for exclusion of this proceeding from consideration for a

simple reason that the definition is just explanatory

definition as to who could be called as corporate

guarantor. In this case, the corporate Debtor is the

guarantor of the individual. He executed deed of

guarantee in the year 2008. He thereby undertook to

repay the debt in case of default by the original

borrower. The definition of the corporate guarantor relied

on by him in Section 5A cannot be used to show

applicability or inapplicability of provisions of IBC

against him as it is just explanatory