TaxTMI 
TaxTMI 
2025 (7) TMI 83
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....the case necessary to be noticed for deciding the Appeal are: (i) The Consortium of Banks led by SBI sanctioned credit facilities to the CD. A Credit Facility Agreement dated 19.11.2013 was executed between the Consortium of Lenders and the CD - M/s K K Milk Fresh India Ltd. (ii) For an amount of Rs.172 crores, the Appellant executed a Deed of Personal Guarantee on 22.11.2013. Security Trustee Agreement dated 22.11.2013 was also executed, where SBICAP Trustee Co. Ltd. was appointed as Security Trustee to act for Lenders in respect of creation of security under the loan facility. A Supplemental Facility Agreement dated 16.09.2015 and a Supplemental Deed of Guarantee dated 16.09.2015 were also executed. (iii) Account of the CD was declared as NPA on 28.09.2016. The SBI issued Demand Notice on 01.09.2017 under Section 13, sub-section (2) of the SARFAESI Act, 2002 seeking repayment of debt of Rs.110,16,95,531 as on 31.08.2017. The SBI filed OA No.264 of 2018 under Section 19 of the RDB Act before the DRT II, New Delhi. The SBI also issued a legal Demand Notice on 10.10.2017 for total outstanding liabilities of Rs.1,11,89,59,417/-. (iv) On an applicat....
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....been filed by the RP dated 31.01.2025. Learned Counsel for the Appellant took time to file rejoinder affidavit, however, no rejoinder was filed and on 08.04.2025, the Appellant made a statement that he does not purpose to file a rejoinder affidavit. Appeal was heard on 13.05.2025. 4. We have heard Shri Arjun Sanjay, learned Counsel appearing for the Appellant; Shri Ankur Mittal, learned Counsel appearing for the SBI; and Shri Abhishek Anand, learned Counsel appearing for the RP. 5. Learned Counsel for the Appellant in support of the Appeal submits that notice invoking the guarantee dated 10.10.2017 was never served on the Appellant. It is submitted that along with notice dated 10.10.2017, neither postal receipt nor the service report has been annexed. No proof of delivery of notice to the Appellant has been brought on the record along with Section 95 Application. The Appellant in his written submissions has raised the issue that failure to place any document reflecting invocation of guarantee issued by the Financial Creditor is a material irregularity. No document has been placed on record to prove service of notice under Section 13, sub-section (2). It is submitted that Adju....
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....lant never raised any issue with regard to the non-service of notice invoking the guarantee or Demand Notice under Form-B. It is submitted that several dates were fixed before the Adjudicating Authority and despite repeated opportunities granted to the Appellant, no reply was filed and lastly right to reply was struck off by the Adjudicating Authority. Even during hearing before the Adjudicating Authority, the Counsel for the Appellant never raised any issue regarding non-service of notice and in the Appeal, for the first time non-service of notice is raised as an afterthought with an intent to delay the proceedings. It is submitted that against other Personal Guarantors of the CD, Section 95 application has already been admitted. It is submitted that additional documents have been brought on record by the RP along with additional affidavit dated 23.09.2024, bringing on record the relevant materials to prove the service of notice, including the notice dated 01.09.2017 and proof of service, which need to be accepted on record for deciding the Appeal. 8. We have considered the submissions of learned Counsel for the parties and have perused the records. 9. Only issue which is so....
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....sentation on behalf of the Respondent/Personal Guarantor, who seeks an indulgence for permitting him to file the reply within a period of one week. 4. As an indulgence we grant another opportunity to the Respondent/Personal Guarantor to file reply within a period of one week, failing which, the right to file reply shall be deemed to be struck off and no further order would be required to be passed. 5. The matter is adjourned for further hearing on 16th February, 2024, before the regular Bench." 11. The matter was again taken up on 01.03.2024, where Court noticed that inspite of several opportunities, no reply has been filed by the Personal Guarantor. Learned Counsel for the Personal Guarantor made further request for opportunity, which was allowed subject to payment of costs of Rs.25,000/-. Paragraph 2, 3 and 4 of the order are as follows : "2. We see from the previous order dated 21.12.2023 where vide para no.3, we have observed that the reply be filed within a period of two weeks as a last opportunity, failing which, the right to file reply will be struck off. Further, on 16.01.2024 vide para no.4, we have further observed that in view of the request....
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....ared and Court noticed that right to file reply has been struck off. However, Court granted opportunity to the Personal Guarantor of hearing and to make oral submissions. Paragraph 6 of the order notices the submissions made by learned Counsel for the Personal Guarantor opposing Section 95 application. Paragraphs 5 and 6 of the order dated 08.05.2024 are as follows: "5. In view of this, we have permitted the Ld. Counsel representing the Personal Guarantor to make oral submissions. 6. The main contention raised by the Ld. Counsel representing the Personal Guarantor is that the present petition filed by the State Bank of India, is not maintainable in terms of the limitation, as it is grossly barred by limitation. It is also pointed out that as per Deed of Personal Guarantee dated 22.11.2013, upon occurrence of an Event of Default, the Security Trustee, which in the present case is SBI CAP Trustee Co. Ltd., may raise a notice of demand upon the personal guarantor. However, in the present case, notice of demand is issued by the State Bank of India i.e. the lender and not the Security Trustee." 14. When we look into the above arguments of the Personal Guarantor, not....