2024 (3) TMI 1336 - Tri - Insolvency and Bankruptcy

Seeking to initiate Insolvency Resolution Process against Personal Guarantor of the Corporate Debtor - Application filed u/s 95 of the IBC, 2016 read with Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 - time limitation. HELD THAT - It is pertinent to note that nowhere in the report of RP there is mentioning of revival letter dated 19.09.2017 given by the respondent which creates doubt about signing of revival letter by the respondent. Therefore, contention of the respondent shows that she has never signed any such revival letter appears to be genuine. No reason is given by the applicant for non-filing of revival letter along with the petition or giving to the RP as it is not mentioned in the RP report nor copy annexed - The revival letter as well as acknowledgement of service of notice was not filed along with application. No reason given for not filing the same. Those were filed later-on, which creates doubt of their genuineness. Hence, the application is not within the period of limitation without revival letter. However, it will be in the interest of justice to decide the matter on other aspects so as to avoid remand of matter. Time Limitation - HELD THAT - There is no explanation how the date of default has been changed from 30.06.2018 to 24.12.2019. It is also pertinent to note that the applicant has issued notice under SARFAESI Act on 14.06.2019 and are relying upon same. No further notice is issued by the applicant, when they have mentioned date of default as 24.12.2019 there was no reason for the applicant to issue notice prior to default i.e. on 14.06.2019. It means that the applicant has issued notice dated 14.06.2019 without there being default in repayment. Therefore, to consider default dated 24.12.2019, notice dated 14.06.2019 cannot said to be invocation of guarantee by the applicant. If we consider date of default as 24.12.2019, no further notice of invoking guarantee was issued thereafter to the guarantor. Considering these important dates, it appears that the guarantee is not invoked when the default occurred so the petition is liable to be dismissed. The case in hand, the date of default mentioned is 30.06.2018 and the date of demand notice is 14.06.2019. When a limitation period is expired during the period between 15.03.2020 to 28.02.2022 the directions are specifically given in para-III of the order. The directions clearly give 90 days further period from 01.03.2022. It is also mentioned that in the event of actual balance period of limitation remains is greater than 90 days from 01.03.2022 in that case longer period shall apply. So if the date of default is taken into consideration as 30.06.2018 the applicant will have only 90 days limitation period to file an application. If the date of notice is considered, i.e. 14.06.2019, the applicant has the actual balance period remaining i.e. 106 days to file the application. If date of default as per application as 24.12.2019 is considered there is no invocation of guarantee. The petition itself is defective as well as not within the period of limitation - Petition dismissed.

Summary

Issues Involved:
1. Maintainability of the application under Section 95 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016).
2. Limitation period for filing the application.
3. Validity of the revival letter and service of notice.

Issue-wise Detailed Analysis:

1. Maintainability of the Application:
The application was filed by the State Bank of India (Financial Creditor) under Section 95 of the IBC, 2016, seeking to initiate the Insolvency Resolution Process against the personal guarantor of the Corporate Debtor, M/s. Yogiraj Ginning and Oil Industries Pvt. Ltd., for a default amounting to Rs. 24,41,53,898.12. The personal guarantor contested the application, arguing it was barred by limitation and defective due to the non-filing of relevant documents, including the revival letter dated 19.09.2017 and the notice invoking the personal guarantee.

2. Limitation Period for Filing the Application:
The personal guarantor argued that the application was filed beyond the limitation period, citing the date of default as 30.06.2018, while the application was e-filed on 28.01.2023. The applicant contended that the limitation period should be counted from the date of the demand notice under Section 13(2) of the SARFAESI Act, which was issued on 14.06.2019. The Tribunal noted that the revival letter, which could extend the limitation period, was not initially filed with the application and was only produced later without permission, creating doubts about its genuineness. The Tribunal also considered the exclusion of the limitation period due to the COVID-19 pandemic as directed by the Hon'ble Supreme Court but found that the application was still time-barred.

3. Validity of the Revival Letter and Service of Notice:
The personal guarantor disputed the authenticity of the revival letter dated 19.09.2017, claiming she never signed it and requested a forensic examination of the signature. The Tribunal noted that the revival letter was not mentioned in the Resolution Professional's (RP) report, creating further doubts about its authenticity. Additionally, the service of the demand notice was contested by the personal guarantor, who claimed it was not served upon her. The Tribunal found that the notice was received by someone else at the respondent's address, which could be considered proper service under the provisions of the Civil Procedure Code (CPC).

Conclusion:
The Tribunal concluded that the application was not maintainable due to the following reasons:
1. The revival letter was not initially filed with the application, and its authenticity was doubtful.
2. The application was filed beyond the limitation period, even after considering the exclusion period due to the COVID-19 pandemic.
3. The correct procedure for invoking the guarantee was not followed, as the dates of default and the notice did not correlate.

Order:
The Tribunal rejected the application CP(IB) 170(AHM)2023 with IA/1431(AHM)2023.