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Will the other assets of the promoter other than the guaranteed assets to the corporate debtor under Insolvency and bankruptcy code 2016 be affected and can the lenders initiate suit on the other assets or properties of the promoter who is a guarantor to the corporate debtor ?

A. Personal Liability of the promoter when the Moratorium has been issued Recently in the case of Schweitzer Systemtek vs. Phoenix ARC Limited3, the Mumbai bench of the NCLT was asked to adjudicate on the issue that whether the personal properties of the promoters which have been given as security to the bank/creditor come under the purview of the moratorium as envisaged under Section 14 of the Code or not. In this case, Dhanlaxmi Bank had lent Rs 4.5 crore to the company wherein the promoter had pledged personal properties. The bank sold the loan along with security to Phoenix ARC. M/s Schweitzer Systemtek had filed for the initiation of CIRP under Section 10 (3) which was opposed by Phoenix ARC fearing that if the case is admitted, a moratorium under Section 14 of the Code will be issued, which could thwart the action taken so far for recovery of the outstanding loans which included selling personal properties of the promoters which were in an advanced stage. The Tribunal perused the facts and came to the conclusion that the admitted position of the debtor is that the personal properties have been given as a "Security" to the banks which clearly implies that the properties are currently not under the ownership of the Corporate Debtor. In that regard, to ascertain that whether the properties which are not owned by a Corporate Debtor will come within the ambits of the Moratorium or not, the Tribunal examined Section 14 (c) of the Code and observed that the canon of interpretation is a very important tool for gauging the intention of the legislature and language of the Statute is such that no word can be added, or substituted or deleted from the enacted Code, thereby the term "its" in the aforementioned section becomes very important because on a plain reading of the section it is understood that on the commencement of the Insolvency Process, the Moratorium shall be declared for prohibiting any action to recover or enforce any security interest created by the Corporate Debtor in respect of its property, the usage of the word "its" clearly makes a distinction between the property owned by the Corporate Debtor and other properties, which means that the Moratorium will have no application on the properties beyond the ownership of the Corporate Debtor. In this case, since the property in question was given as security to the bank, the moratorium would not apply on the personal properties. This issue was also discussed in the case of "Alpha & Omega Diagnostics (India) Ltd v/s Asset Reconstruction of India & Ors4" before the Mumbai bench of the NCLT, where the tribunal took a similar stand and held that the personal properties of the promoters which have been given as security will not be affected by the Moratorium issued under Section 14 since the wordings of the section are very clear in their meaning that that the Moratorium applies only to the properties of the corporate debtor and therefore the personal properties of the promoters which have already been given as a security to the lending bank will remain unaffected by the Moratorium in effect, this reasoning was then challenged before the NCLAT5, wherein it dismissed the appeal by affirming the order of the NCLT Mumbai bench.
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Kishan Dutt Kalaskar Retired Judge
Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
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tarun singh

Posted 1 year ago

I have taken a car loan of amount 3 lac in the year 2015 November, i was continuously giving late emi in the year 2017 but i was paying emi within the month, during November 2017 i was having 2 emi bounced, unpaid, so company manager came to me and advised me to surrender your car with a reason that u have taken loan for somebody else on my name and he is now unable to pay the emi so i am surrendering my vehicle, and as per his advice i surrendered the vehicle to the company. and that manager told me that he will take care of everything nothings gonna happen. i was receiving letter from company about auctioning the vehicle and i informed each and every letter to that guy, but in April 2018 they sent me legal notice that car is been auctioned in 1.5 lacs and an amount of 74626 is pending due on you kindly submit this amount within 7 days or company will file a legal case on me. after that i went directly to companies office to ask that manager abut his next plan, but i came to know that he left the company 2 months back. i talked to the lawyer of the company there he told me to submit 25000 per month and complete the payment within 3 months, but i am unable to pay such amount i told him that i can pay 10000 per month to clear pending dues. but he ignored. i want to know should i send a letter directly to head office legal lawyer from where i am receiving these letters for asking them why they have charged me 15000 for repossession if i have surrendered my vehicle by myself ? or is there any way to get rid of it ? please help me out. i will be very thankful.

A. Dear client! Please contact the DRT and request them that I will be able to give 10000 per month.
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VIMAL K MISHRA
VIMAL K MISHRA Exp: 15 Year(s) Allahabad
Johnson  Thangiah
Johnson Thangiah Experience: 18 Year(s) Tirunelveli
Ved prakash  Shaw
Ved prakash Shaw Experience: 38 Year(s) Bhubaneswar
Ambrose  Leo
Ambrose Leo Experience: 9 Year(s) Bangalore
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Anonymous

Posted 1 year ago

Can husband and wife file for insolvency combined? In that case what will be the court fees?

A. I think no! It is unlikely that two legal person will be completely insolvency at the same time even if they are both husband and wife try to discuss with concern authorities.
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VIMAL K MISHRA
VIMAL K MISHRA Exp: 15 Year(s) Allahabad
Kishan Dutt Kalaskar Retired Judge
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Prabhakara S K Shetty
Prabhakara S K Shetty Experience: 19 Year(s) Bangalore
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Anonymous

Posted 1 year ago

I wish to file for insolvency but do not have enough money to pay court fees. also, can I get free legal aid from Bombay High Court for insolvency

A. No. In money matters it never extend.Pauper application under CPC may be filed.
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Kishan Dutt Kalaskar Retired Judge
Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
My ancestoral property in which acc. To will of my grand father i hold half the share and my sister holds 1/4th and my father holds 1/4 th share was pledged in bank for loan without my notice, by my father when me and my sister were minors, now the cc limit has become NPA and bank is trying to get possession of my and my sister's property which my father had taken loan on without bringing to our notice i was 14 then and am now 20 and have applied for stay in court , what is the possible outcome of this case ?
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Anonymous

Posted 1 year ago

Hello Team, Ive taken personal loan on salary basis (unsecured) from bank. Currently Im not working and looking for Job and unable to repay the debt. Is it possible to file a bankruptcy. My main account is in negative and I do not own any asset. My parent own house. If I file bankruptcy will it affect my parents as I'm not stayong with them anymore. Hope to get the clarification as my parents getting harrased by third party collection.

A. dear client in your matter You can file for bankruptcy.
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Deepak Yashwantrao Bade
Deepak Yashwantrao Bade Exp: 9 Year(s) Nagpur
Prabhakara S K Shetty
Prabhakara S K Shetty Experience: 19 Year(s) Bangalore
Nilanjan  Chatterjee
Nilanjan Chatterjee Experience: 5 Year(s) Howrah
Sir,I have a question, I am married since 20yrs ,but myself and my husband are separated since more 16yrs put up for divorce on court now only ,I was scared my children have advorse effect ,so waited for this many years , sir ,he is a business man,but loser ,lost all money, and taken loan from bank in high amount , making me also co-applicant ,now I am in crucial situation ,I can't rare children also properly he don't look after children since beginning ,they r with me ,I have a govt job , but not able fulfill any thing ,I don't get any loan because he is default er, and now bank have decided to capture the property and filed acase in court , since 5yrs ,this is continuing ,how I can withdraw myself from all these , neither the divorce case is moving ,nor the property is auctioned ,l PL guide me,what to do

A. dear client kindly consult for a proper advice as your matter needs lot of attention.
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Deepak Yashwantrao Bade
Deepak Yashwantrao Bade Exp: 9 Year(s) Nagpur
Ambrose  Leo
Ambrose Leo Experience: 9 Year(s) Bangalore
Kishan Dutt Kalaskar Retired Judge
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Hi My family has been bankrupt for quite some time now. We have been living in a big property which we thought would be a more convenient source of income if we rent it out, and rent in an apartment for half its price. Is this risky? Will the creditors take our original property while we are not living in it but are still dependent on it for income? What should we do, please advice?

A. dear client This case is not legally sustainable.
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Deepak Yashwantrao Bade
Deepak Yashwantrao Bade Exp: 9 Year(s) Nagpur
Johnson  Thangiah
Johnson Thangiah Experience: 18 Year(s) Tirunelveli
Ambrose  Leo
Ambrose Leo Experience: 9 Year(s) Bangalore
If we come back India from UAE and have pending credit card dues to pay in Dubai, can they file case in India. Lost job and unable to pay, hence came back. Will collection agents harass us? Can they file case on us in India? Will we be liable legally? Please answer. Many thanks in advance.

A. dear client i will suggest you that kindly clear all dues of your credit card. it might be create legal issues and couses arrest .
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Deepak Yashwantrao Bade
Deepak Yashwantrao Bade Exp: 9 Year(s) Nagpur
Nilanjan  Chatterjee
Nilanjan Chatterjee Experience: 5 Year(s) Howrah

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