TaxTMI 
TaxTMI 
2026 (5) TMI 649
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.... Gurmeet Sodhi and C.P. (IB) No.205/2021 filed by the SBI against Jitendra Singh. Adjudicating authority by the impugned order has admitted Section 95 application against both the personal guarantors, aggrieved by which order, these appeals have been filed. 2. Both the appeals having arisen from common facts and events, it shall be sufficient to refer to Comp. App. (AT) (Ins.) No. 774/2026 for deciding both the appeals: i. The corporate debtor availed various credit facilities from consortium of lending Banks on 24.04.2014. ii. State Bank of India (SBI) issued a sanction letter dated 30.09.2014, for allowing Corporate Debt Restructuring ('CDR') limit of 193.62 crore, the borrower executed various documents on 30.09.2014. Gurmeet Sodhi and Jitendra Singh executed Deed of Guarantee dated 30.09.2014 in favour of the SBI. In view of the arrangement and restructuring of the amount various loaning documents dated 29.12.2014 were executed. On 29.12.2014, Gurmeet Sodhi and Jitendera Singh have also executed a Deed of Guarantee in favour of the consortium Bank. iii. The corporate debtor M/s. Kudos Chemie Ltd. could not maintain its account properly failed, to h....
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....r failed to make any payment. viii. The personal guarantor also filed the objection before the adjudicating authority. Adjudicating authority by the impugned order admitted Section 95 application, aggrieved by which order, these two appeals have been filed. 3. We have heard learned Sr. counsel Mr. Abhijit Sinha appearing for the appellant as well as learned counsels Mr. Siddharth Sanghal and Ms. Richa Mishra appearing for respondents No. 1 and learned counsel Mr. Harsh Garg and Mr. Pulkit Goyal appearing for respondents No. 2. 4. Learned Sr. counsel Mr. Abhijit Sinha appearing for the appellant submits that the personal guarantee given by the appellant was never invoked. It is further submitted that in notice under Section 13(2) of the SARFAESI Act, the only Guarantee Deed was mentioned as 30.09.2014, whereas there was restructuring of the debt and another guarantee was issued on 29.12.2014 by the personal guarantors, after Master Restructuring Agreement (MRA) dated 29.12.2014 and fresh guarantee was executed on 29.12.2014 replacing the earlier guarantee 30.09.2014. Subsequent guarantee dated 29.12.2014 having never been invoked, the entire proceedings is vitiated. I....
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.... shall again be fresh period of limitation. It is submitted that there are no grounds made out to interfere with the impugned order. Adjudicating authority after considering all relevant submissions and facts of the case has rightly admitted Section 95 application. 6. We have considered the submissions of the counsel for the parties and perused the records. 7. The first question which need to be answered is as to whether notice under Section 13(2) dated 05.11.2016 can be said to notice invoking guarantee of personal guarantor or not? Notice dated 05.11.2016 has been filed as Annexure A-28 to the appeal. Notice is addressed to corporate debtor and both the personal guarantors Gurmeet Sodhi and Jitendera Singh, the appellants herein. The notice clearly mentioned that financial assistance is also secured by the personal guarantee of the guarantors, name of both the appellants were mentioned. It is useful to extract the entire notice 05.11.2016 which is as follows: "Ref.: SAMB/CHD/VK/Telephone: 2545755,2700760 Dated: 05.11.2016 FAX No.: 0172-278441 E-Mail:[email protected] Regd.AD M/s Kudos Chemie Ltd. Vill. Kuranwala, Barwala Road, Tehsil- Derrabassi- 1....
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....cilities have become irregular and the debt has been classified as non-performing asset with effect from 31.05.2015 in accordance with the directives/guidelines relating to asset classifications issued by the Reserve Bank of India consequent to the default committed by you in repayment of principal debt and interest thereon. The said financial assistance is also secured by the personal guarantees of the Directors: 1. Sh Jitendra Singh S/o Sh. Bhupendra Singh 2. Smt Gurmeet Sodhi W/o Sh. Jitendra Singh 3. Mr. Kabir Sodhi S/o Shri Jitendra Singh 4. Mr. Kirat Sodhi S/o Shri Jitendra Singh Despite repeated requests, you have failed and neglected to repay the said dues/outstanding liabilities. Therefore, the Bank hereby calls upon you u/s. 13(2) of the said act by issuing this notice to discharge in full your liabilities stated hereunder to the Bank within 60 days from the date of this notice. Your outstanding liabilities (in aggregate) due and owing to the Bank as on 02.11.2015 are in the sum of Rs. 210,02,71,756.32 (Rs. Two hundred ten crores two lacs seventy one thousand seven hundred fifty six and paisa thirty two only).....
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....ny objection regarding non-service of notice dated 05.11.2016, the appellant cannot be allowed to raise the issue of non-service in this appeal. 10. Now we come to the next submission of the counsel for the appellant that there was restructuring of the debt for which MRA dated 29.12.2014 was also executed and fresh guarantee was executed on 29.12.2014, which is neither referred nor relied in notice dated 05.11.2016. 11. In application under Section 95 filed by the Bank against personal guarantors, list of dates and events have been mentioned which clearly mentioned about restructuring on 29.12.2014 and execution of guarantee by the appellant on 29.12.2014 in favour of the consortium of Bank. Further it was clearly pleaded that corporate debtor could not maintain its account properly and same was classified as NPA on 31.05.2015 by the SBI. The declaration of NPA of the account clearly lead to the conclusion that repayment under the restructured debt was not honoured by the appellant. Even though, fresh Guarantee Deed was duly issued on 29.12.2014 consequent to the restructuring of the debt, but the appellant cannot be said to be absolved from their earlier guarantee 30.09.2014....
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....g on the judgment of this Tribunal has not accepted the submission that notice under Section 13(2) is not a notice invoking the guarantee. In paragraphs 26 & 27, following was held: "26. The Hon'ble NCLAT in Uijwal Gupta v. Union Bank of India and Anr., (2026) ibclaw.in 18 NCLAT, while dealing with a similar contention, held in paragraph 27 as under: "27. Thus, in our considered opinion, it (Demand notice Under Section 13(2) SARFAESI Act) was a crystal-clear communication not only to the Appellant but to all the addressees to discharge their liability with regard to the credit facilities extended to CD by the financial creditor and there appears no ambiguity in this. Since the appellant has extended guarantee by executing a deed and the principal borrower/ CD failed to pay the amount of credit facilities extended by the Financial Creditor and the liability of the principal borrower and guarantor is coextensive, this demand notice was sufficient communication to the appellant to discharge his liability under the guarantee deed towards the credit facility extended by the creditor to the CD and is sufficient invocation of guarantee." 27. Applying the abo....
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....arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) ..... (2A)... (3) The provisions of sub-section (1) shall not apply to - (a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector regulator or any other authority; (b) a surety in a contract of guarantee to a corporate debtor. (4) ....." A plain reading of Section 14(3)(b) makes it clear that the moratorium imposed under Section 14(1) does not extend to a surety in a contract of guarantee to the Corporate Debtor. Hence, the statu....