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TMI Blog2024 (5) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the Corporate Debtor has been filed challenging the order dated 20.03.2024. passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Division Bench, Court No.1 by which Section 95 application filed by the Financial Creditor has been admitted. Brief facts of the case necessary to be noticed for deciding the appeal are : (i) Dena Bank has issued a Sanction Letter dated 18.06.2012 to the Corporate Debtor - M/s Morakhia Metals and Alloy Pvt. Ltd. The Corporate Debtor was granted credit facility to the extent of Rs.32.15 Crore. (ii) The Appellant along with one Mr. Pankaj Kumar Morakhia executed a Joint Deed of Guarantee dated 25.07.2012 in favour of the Dena Bank in order to secure the loan facility. (iii) On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttacharya, learned counsel for the Appellant and Shri Bharat Sood, learned counsel appearing for Respondent No.1 - Financial Creditor. 3. Learned counsel for the Appellant challenging the order submits that date of default having occurred on 04.03.2016, the application under Section 95 having been filed on 10.08.2021 is beyond the period of three years and barred by time. The three years' period stood expired on 04.03.2019 and thereafter no application under Section 95 could have been filed by the Bank. It is further submitted that the Dena Bank having already invoked the guarantee dated 25.07.2012, it could not have assigned debt to Respondent No.1. Assignment Agreement itself is invalid. It is submitted that the application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Financial Creditor was barred by time. Submission of the Appellant is that the Deed of Guarantee dated 25.07.2012 was invoked by Recall Notice dated 04.03.2016, hence, three years' period of limitation ended on 04.03.2019 and application filed by the Financial Creditor on 10.08.2021 was barred by time. Copy of the Invocation Notice dated 04.03.2016 has been brought on record as Annexure A-3, which clearly has been addressed to the Appellant and other Personal Guarantors. The notice demanded an amount of Rs.26.68 crore within 15 days from the date of notice. After issuance of notice, the Appellant has issued Declaration cum Undertaking, which has been brought record as Annexure A-4. The Declaration cum Undertaking dated 29.01.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lien to the extent of my share in the said joint property and undertake to appropriate any proceeds from said property towards the outstanding of dues, if any of Morakhia Copper & Alloys Pv.t Ltd. or as per terms of settlement or mutual understanding in writing agreed with Reliance ARC from time to time. 5. In case of default in said OTS, Reliance ARC may demand the share in the proceeds directly from M/s. Veer Jalaram Builders on my behalf for appropriation towards the dues of the said company. I solemnly affirm that this declaration is true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false." 7. When we look into the Declaration cum Undertaking, which was issued by the Appellant, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 95(1). We do not find any defect in the application which was filed by the Financial Creditor through Resolution Professional i.e. Mahesh R. Sureka, who is also submitted his written consent in Form A, which is part of the application. The authorized person of the Financial Creditor has authorized the Resolution Professional to sing the application in NCLT, Ahmedabad Bench on behalf of the Financial Creditor, which document has also been brought on the record along with the appeal. We, thus, do not find any defect in the application which warrants dismissal of application on this ground. No defect was pointed out by the Adjudicating Authority to the Financial Creditor, which fact is undisputed. 11. In the Written Submission filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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