EDELWEISS FINANCE & INVESTMENTS LIMITED (FORMERLY KNOWN AS CROSSBORDER INVESTMENTS PRIVATE LTD ) Vs. ASHISH JHUNJHUNWALA

JUDGEMENT

(1.) This Summons for Judgement is taken out in a Summary Suit instituted upon leave granted by this Court under ClauseXII of the Letters Patent. The Defendant herein has moved a Chamber Summons for revocation of that leave. Both the Summons for Judgment and Chamber Summons are on Board today before the Court.

(2.) It is the Plaintiffs' case that one Ramsarup Industries Limited ("Company") was granted a short term loan of Rs.25 crores by the Plaintiffs (formerly known as Crossborder Investments Private Limited). A loan agreement dated 10 December 2008 was entered into between the parties in respect of this loan. The company also caused to be executed various other documents, through itself and its directors, for securing the loan. One of the documents was a personal guarantee executed by the Defendant in favour of the Plaintiffs on 28 January 2009. By this guarantee, the Defendant guaranteed repayment of the balance loan amount of Rs.15 crores. It is the Plaintiffs' case that the company failed and neglected to pay a substantial part of the balance loan and as a result, the Plaintiffs invoked the personal guarantee of the Defendant and filed the present Summary Suit relying on the guarantee.

(3.) Insofar as the suit claim is concerned, it is an admitted position that a part of the loan amount is not repaid by the company to the Plaintiffs. The Plaintiffs had approached Calcutta High Court in a winding up petition against the company. In its order passed on 1 February 2010, Calcutta High Court noted that the company had admitted the principal claim of Rs.9.46 crores. The Company Petition, in the premises, was admitted. The company was, however, permitted to pay off this sum along with interest in installments. It was provided that in the event of such payment, the winding up petition would remain permanently stayed. In default of any one of the installments, the Plaintiff was permitted to advertise the winding up petition. It is also an admitted position that in pursuance of this order, installments aggregating to Rs.7.90 crores were received by the plaintiff from the company. The balance amount was clearly due and payable by the company to the plaintiff. In the meantime, a reconstruction application respect of the company was moved before BIFR. During the pendency of the BIFR proceedings, the new Companies Act and Insolvency and Bankruptcy Code came into force. As a result, the proceedings stood transferred to NCLT and the mater is currently pending before NCLT, Calcutta. Be that as it may, there is clearly no defence as far as atleast the principal amount payable by the company is concerned. Even the Defendant herein does not dispute the same.