TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1718
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....ntors, in their status in the said capacity, question the propriety of the impugned orders of 15.04.2024, as they was rendered in CP (IB) No. 213/95/HDB/2023 and CP (IB) No. 207/95/HDB/2023 respectively. By virtue of the impugned orders, which are under challenge, the proceedings that were held under Section 95 of the I & B Code, 2016, had been directed to be admitted, as against the present Appellants for being carried forward, in accordance with the provisions of law, applicable to it. 2. To be precise, certain dates become relevant to be noted, which are chronologically referred to hereunder: - (i) On 06.10.2014, a Personal Guarantee bond was executed by the Appellant, ensuring the Advancement of a Loan to the Corporate Debtor. (ii) On 13.10.2015, the Corporate Debtor, that is Respondent No. 3 herein, was declared as NPA (Non-Performing Asset). (iii) On 01.11.2015, proceedings by issuance of a demand notice under Section 13 (2) of the SARFAESI Act, 2002, stood initiated as against the Corporate Debtor. (iv) On 01.11.2015, as a consequence of, the issuance of a demand notice under Section 13 (2) of the SARFAESI Act, 2002, the Financial Creditor are said to have invoked t....
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....LT, while parting with the judgment on 25.05.2023, left it open for the Financial Creditor to file a fresh application as per law after issuing the required notice. The order of 25.05.2023 has attained finality, as not been challenged. It is extracted hereunder: - "It is submitted by the Ld. Counsel for Personal Guarantor that before filing of this application, the mandatory demand notice was not served on the Personal Guarantor. In terms of section 95 IBC, before instituting, filing the application against the Personal Guarantor seeking Insolvency Resolution, a notice to the Personal Guarantor is mandatory. Under the circumstances this application cannot survive. Hence, it is dismissed, however, giving liberty to the Financial Creditor to file a fresh application as per law, after issuing the required notice." 5. It is the case of the Respondent, that after the judgment of 25.05.2023, a fresh demand notice was served upon the Appellants on 18.04.2023, the same stood acknowledged by the Appellant, which could be very well established by the document of acknowledgement, which has been placed on record of the company appeal, which finds an endorsement of the receipt by the Appella....
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....tice in shape of Form - B would not had any new contents in it in relation to the demand, particularly when the Appellant do not dispute the contents of notice of demand dated 29.12.2021. 9. Admittedly, the demand notice which was issued on 29.12.2021, was well within the prescribed time limit, and the bar of limitation, will not come into play. Further, if 3 years period under Article 137 of the Limitation Act, is taken into consideration, from the date of filing of an application on 05.07.2023, it was still well within the prescribed period of limitation, if determined from the date of the notice itself, i.e., 29.12.2021. 10. Issuance of a fresh notice, was not the object or intention of the order dated 25.05.2023, in fact, it was only an order, which attempted to rectify a procedural error of non-service of the demand notice by ensuring that, it is served upon the Appellant before the proceedings under Section 95 are actually initiated, which stood rectified by the service of demand notice as made on 18.04.2023, which was even acknowledged to be received. From the said perspective, since the notice of demand dated 29.12.2021 was admittedly served on 18.04.2023, and the proceed....
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....od decided by the judgment of 25.05.2023. 14. On an overall consideration of the findings which were recorded, it is only upon the classification of the loan account as NPA (Non-Performing Asset) on 31.10.2015, that the Guarantor's liability in pursuance to the demand raised by the creditors on the Guarantor got crystalized to be proceeded with and limitation will start from 09.07.2019, date of issue of Debt Recovery Certificate. The period of 3 years would have to be computed after excluding the period specified limitation by the judgment of the Hon'ble Apex Court, as rendered in Suo Moto Writ Petition No. 3/2020, i.e., the period from 15.03.2020 to 28.02.2022. As the Application were filed on 05.07.2023, they stand well within the limitation period, as the limitation period would stand extended in the light of the judgment rendered by the Hon'ble Apex Court, a finding in relation to which has been recorded in Para 20 of the judgment. 15. What could be conclusively determined from the records, is that, in principle, the Appellant has admitted the liability, as it was reflected in the demand notice issued under Rule 7 and more aptly in pursuance to the demand notice issued un....
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....ce of any express provision which either prohibits or sets a time-limit for filing of additional documents, it cannot be said that the adjudicating authority committed any illegality or error in permitting the appellant Bank to file additional documents. Needless however, to mention that depending on the facts and circumstances of the case, when there is inordinate delay, the adjudicating authority might, at its discretion, decline the request of an applicant to file additional pleadings and/or documents, and proceed to pass a final order. In our considered view, the decision of the adjudicating authority to entertain and/or to allow the request of the appellant Bank for the filing of additional documents with supporting pleadings, and to consider such documents and pleadings did not call for interference in appeal. 143. For the reasons discussed above, the impugned judgment and order is unsustainable in law and facts. The appeal is accordingly allowed, and the impugned judgment and order [C. Shivakumar Reddy v. Dena Bank, 2019 SCC OnLine Nclat 907] of Nclat is set aside." 16. The Recovery Certificate that was issued by the Debt Recovery Tribunal on 09.07.2019, and the Financial....