TaxTMI 
TaxTMI 
2023 (1) TMI 253
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....for R-1 Mr. Gautam, Advocate for R-2 JUDGMENT ASHOK BHUSHAN , J. This Appeal has been filed by the Appellant, a Guarantor of the Corporate Debtor, challenging the order dated 23.05.2022 passed by the National Company Law Tribunal, New Delhi Bench-II dismissing an Application filed by the Appellant under Section 94 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "Code") relying on the report submitted by the Resolution Professional ("RP"). 2. Brief facts of the case necessary to be noted for deciding this Appeal are: (i) The Corporate Debtor - M/s. Gulati Retail India Ltd. had obtained financial facilities from Punjab & Sind Bank and ICICI Bank Ltd. The Appellant was one of the Personal Guaran....
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....) and called for a report. The report was submitted by the RP. The RP in his report recommended rejection of the Application, Adjudicating Authority rejected the Application filed under Section 94 by the impugned order. The Adjudicating Authority took the view that Applicant has not produced any other document except the notice dated 04.10.2013 that guarantee has been invoked against the Applicant for recovery of the amount. 3. Shri Rajesh Bohra, learned Counsel for the Appellant challenging the order, submits that view taken by the Adjudicating Authority that guarantee has not been invoked against the Appellant is erroneous. Notice dated 04.10.2013 issued by the Bank under Section 13, sub-section (2) of the SARFAESI Act was addressed to....
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....he various loaning documents in respect of the above loan facilities on 27-04-2012 and also agreed to pay the rate of interest at the rate of 14.25 (Base Rate plus 4%) per cent per annum which monthly rests and as per guidelines of the bank from time to time, in respect of the above facilities. 3. That you addressee No.2 To 6 stood as guarantor(s) for addressee No.1 in consideration of the above said loan facilities and executed the deed of continuing guarantees on 27-04-2012 of addressee(s) No.2 to No.6 is co-extensive and continuing with addressee No.1 and you all are jointly and severally liable to pay the dues including interest, costs and other usual bank charges to the bank. 4. That you addressee NO 6 created equitab....
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....nt in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4). Provided that- (i) the requirement of classification of secured debt as non-performing asset under this sub-section shall not apply to a borrower who has raised funds through issue of debt securities; and (ii) in the event of default, the debenture trustee shall be entitled to enforce security interest in the same manner as provided under thi....
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....Act cannot be treated as invoking of guarantee. The debtor here failed to provide any documents vide which the PSB bank had sought the balance amount of Rs.76.48 lacs from the guarantor after adjusting the recovery of proceeds received from realization of mortgaged immovable property. Debtor has not submitted any notice for invocation of personal guarantee of Mr. Amanjyot Singh Gulati." 9. The learned Counsel for the Appellant may be right in his submission that by virtue of notice issued under Section 13, sub-section (2) dated 04.10.2013, the Appellant was also asked to make the payment of dues, but the undisputed fact is that apart from notice dated 04.10.2013, no steps have been taken by the Bank to recover any dues from the Appellant....