9911796707
TMI Blog2023 (1) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning of Section 13, sub-section (2) shall obviously include the Guarantor also. The Bank has filed a reply in this Appeal and the Bank s categorical case in the Appeal is that Bank has not initiated any proceedings against the Appellant for recovery of its balance amount. The learned Counsel for the Appellant may be right in his submission that by virtue of notice issued under Section 13, sub-section (2) dated 04.10.2013, the Appellant was also asked to make the payment of dues, but the undisputed fact is that apart from notice dated 04.10.2013, no steps have been taken by the Bank to recover any dues from the Appellant. The default, if any, committed by the Appellant was in October 2013, when notice was received by the Appellant. When we come to the order passed by the Adjudicating Authority, it is relevant to notice that in the report submitted by the RP, applicability of the Limitation Act was also noticed. The RP came to the conclusion that the Bank has not invoked the guarantee - In its reply, the Bank has submitted that although after sale of the mortgaged asset, part of the facility was realized, but no steps have been taken by the Bank against the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act ) on 04.10.2013 to the Corporate Debtor and Guarantors. One of the Guarantor Smt. Inderjit Kaur Bagga had created equitable mortgage in respect of immovable property situated at Faridabad to secure the dues of the Bank. The notice called upon all the noticee to jointly and severally make the payment and discharge the full liability amounting to Rs.28343314.56/- with interest with effect from 01.10.2013. The Bank sold the mortgaged properties and recovered part of loan. (iii) The Corporate Debtor filed an Application under Section 10 being IB-1154(ND) 2019 before the Adjudicating Authority for initiation Corporate Insolvency Resolution Process ( CIRP ), which was admitted on 30.07.2019. (iv) The Appellant, who was Guarantor of the Corporate Debtor filed an Application under Section 94 of the Code to initiate CIRP, on which (IB)-957(ND) 2020 was registered. The Appellant s case was that he having committed default in making the payment in response to the notice dated 04.10.2013 issued by Punjab Sind Bank under Section 13, sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious loaning documents in respect of the above loan facilities on 27-04-2012 and also agreed to pay the rate of interest at the rate of 14.25 (Base Rate plus 4%) per cent per annum which monthly rests and as per guidelines of the bank from time to time, in respect of the above facilities. 3. That you addressee No.2 To 6 stood as guarantor(s) for addressee No.1 in consideration of the above said loan facilities and executed the deed of continuing guarantees on 27-04-2012 of addressee(s) No.2 to No.6 is co-extensive and continuing with addressee No.1 and you all are jointly and severally liable to pay the dues including interest, costs and other usual bank charges to the bank. 4. That you addressee NO 6 created equitable mortgage in respect of immovable property i.e. 250 P, Sector-21/B, Urban Estate, Faridabad Bearing to secure the dues of the bank, in consideration of the above said loan facilities to addressee No.1 The details of the property mortgaged is as under: (a) Name of the mortgagor : addressee No.6, Smt. Inderjit Kaur Bagga W/o Sh. J.S. Bagga (b) Mortgagee : Punjab Sind Bank, Gurudwara Road; Gurgaon. (c) Sum secured: Rs.275.00 lacs (Rs. Tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 12 of the reply, following has been stated: 11. The said notice u/s 13 (2) was issued by PSB to enforce the security interest on the mortgaged property given by addressee no.6. The said notice has not invoked guarantee against any guarantor except addressee no.6. This notice is a statutory requirement to intimate borrowers/ guarantor about the default and invoking the security interest and it has nothing to do with invocation of guarantee. 12. That section 13 of the SARFAESI Act, 2002 is a very elaborate section and contains all steps which are required to be taken by a financial institution and therefore, it was just a procedural compliance of provision of sub-section (3) of Section 13 of SARFAESI Act, 2002 read with rule 11 of SARFAESI Rules, 2002. Further, mere issuing of notice u/s 13(2) under SARFAESI Act cannot be treated as invoking of guarantee. The debtor here failed to provide any documents vide which the PSB bank had sought the balance amount of Rs.76.48 lacs from the guarantor after adjusting the recovery of proceeds received from realization of mortgaged immovable property. Debtor has not submitted any notice for invocation of personal guarantee of Mr. Am ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
