2026 (4) TMI 701

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....lant is the Personal Guarantor, who seeks redressal of his grievances being aggrieved as against the impugned order of 20.02.2025, (Amended on 24.02.2025), as it was passed in CP (IB)NO. 83/95/HDB/2023, consequentially resulting into admission of the process of IRP against the Appellant under Section 95 of the I & B Code. Looking to the tenacity of argument of the Ld. Counsel for the parties, we are not required rather were not even called upon to venture into a very detailed elaboration of the factual backdrop of the instant company appeal under which the dispute is arising, except for dealing with the issue of limitation, as to whether the IRP proceedings initiated under 95 of the I & B Code, are barred by limitation. 2. The Appellant ....

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....btor in re-paying the debt, that there was a debt due to be paid, that the Appellant was the Personal Guarantor, are the facts which are not denied. 4. The Ld. Senior Counsel for the Appellant has only confined his argument from the perspective that, the entire proceedings are barred by limitation, since having been initiated, after the lapse of more than three years from the actual date of default, the same couldn't have been permitted to be taken on record, to be proceeded to be adjudicated on merits, and it deserved dismissal on this limited ground itself. In order to substantiate his argument, the Ld. Senior Counsel for the Appellant had drawn the attention of this Appellate Tribunal to certain documents, contending thereof that ....

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....e treated as to be a recalling of the loan for the purposes of determining the cut-off of limitation rather it only expressed an intention for recall. For the reason being that, i. It was addressed to the corporate debtor, ii. That it was only showing an expression of default. iii. It only gave an expression of the Creditor's right to recall the loan. iv. Making the corporate Debtor conscious of the Creditor's right to recall the loan, by the communication of 29.01.2016. 7. We are of the view that, correspondence in itself may not be treated as to be a loan recall notice, since, this letter has been misread by the Appellant and therefore it will be of no relevance for the purposes of the instan....

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....on 95(4)(b) of the I & B Code, which can be taken to be in form of a notice of demand issued to satisfy the ingredients for the purposes of initiation of the proceedings under Section 95, which is a condition precedent under law, prior to filing of an application under Section 95. Further, since the said communication was not falling within an ambit under Section 95(4)(b) of the I & B Code, it cannot be treated as to be a loan invocation notice or even a notice to Appellant as argued by the Ld. Senior Counsel for the Appellant to support his argument that the initiation of proceedings under Section 95 was barred by limitation. 9.(C). Lastly and more importantly, the Ld. Senior Counsel for the Appellant himself has drawn the attention of ....

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....action in this regard." 10. Now, the question that falls for consideration is as to, whether argument of Ld. Senior Counsel for the Appellant in context of the communication of 29.01.2016 and of 30.11.2018 in the light what we have observed above, could at all be taken as to be a loan recall notice or whether it could at all be taken as to be a notice required to be issued prior to the initiation of proceedings under Section 95 of the I & B Code. Our answer would be that on a composite reading of these two communications, which were issued by the Creditor, it only intimated a particular situation of default and the intention of the Creditor intending to initiate a proceedings, and that it never intended to immediately recall the guarante....