Amendment of personal guarantor application permitted where limitation and guarantee invocation objections remained open

Amendment of a Section 95 personal guarantor application was permitted because it was sought before final adjudication and only to place the asserted correct invocation and default dates on record for proper determination. The tribunal held that such amendment did not decide limitation or the validity of guarantee invocation, and the guarantor retained liberty to contest both points, including any time-bar objection, in the main proceedings. Applying the general amendment principle, the request was allowed since no irreparable prejudice or accrued defence was withdrawn. The question whether the amended date makes the proceeding time-barred was left open.

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Issues: Whether the Adjudicating Authority was justified in permitting amendment of the Section 95 personal guarantor application to substitute the date of default with the date of the recall notice, and whether such amendment introduced a time-barred claim.

Analysis: The amendment did not conclude the merits of limitation or the validity of invocation of guarantee. The request was made before final adjudication and was directed only to place the alleged correct invocation date and default date on record for effective determination of the insolvency application. The appellant was given liberty to respond to the amended petition and to raise all objections, including limitation and absence of invocation of guarantee. The governing approach to amendment is that pleadings may be amended if necessary for proper adjudication and if no irreparable prejudice or withdrawal of an accrued defence is caused. The question whether the amended date ultimately renders the Section 95 proceeding time-barred was left open for decision in the main proceedings.

Conclusion: The amendment was rightly allowed and the challenge to it failed.

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