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TMI Blog2024 (6) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... ff. - Hon'ble Ms. Justice Mini Pushkarna For the Petitioner : Mr. Abhinav Mukharji, Sr. Advocate with Mr. Nakul Mohta, Mr. Vinayak Bhandari, Ms. Vidhi Gupta, Ms. Riya Dhingra, Mr. Jaisal Singh and Ms. Teesta Mishra, Advocates. For the Respondents : Mr. Rajesh Kumar Gautam, Mr. Anant Gautam, Ms. Anani Achumi, Mr. Dinesh Sharma, Ms. Shivani Sagar, Ms. Likivi Jakhalu, Advocates. ORDER MINI PUSHKARNA, J: (ORAL) CM APPL. 28645/2024 CM APPL. 28646/2024, CM APPL. 28649/2024, CM APPL. 28650/2024, CM APPL. 28652/2024, CM APPL. 28653/2024, CM APPL. 28657/2024, CM APPL. 28658/2024 (For Exemptions) 1. Exemptions allowed, subject to just exceptions. 2. Applications are disposed of. W.P.(C) 6864/2024 CM APPL. 28644/2024 W.P.(C) 6865/2024 CM APPL. 28648/2024 W.P.(C) 6866/2024 CM APPL. 28651/2024 W.P.(C) 6867/2024 CM APPL. 28656/2024 3. The present petitions have been filed by the petitioners, who are the personal guarantors to the Corporate Debtor. The present petitions challenge the order dated 07th May, 2024 passed by the learned Adjudicating Authority, i.e., National Company Law Tribunal ( NCLT ) in C.P.(IB) No. 490/ND/2023, and other connected matters, whereby, the learned Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in the impugned order, is not applicable to the facts and circumstances of the present case. It is submitted that the Supreme Court has merely observed in the said case that the issues such as existence of a creditor-debtor relationship, and whether the debt is outstanding or settled, need not be looked into at the stage of appointing RP. Thus, he submits that the said judgment does not state that the issue of limitation cannot be looked into or that Section 3 of the Limitation Act, 1963 ( Limitation Act ) is not applicable at the stage, where the Adjudicating Authority is discharging its functions under Section 95 of IBC. Thus, it is submitted that the learned Adjudicating Authority is not precluded from looking into the issue of limitation as a foundational issue at this stage. 4.5 Learned Senior Counsel appearing for the petitioners further submits that the petitioners have no alternate efficacious remedy under the IBC, in as much as, the impugned order has been passed in Section 95 proceedings initiated under Part III of the IBC. He submits that the provision for appeal under the IBC, i.e., Section 61, falls under Part II of the IBC. Thus, he submits that in view of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the respondent no.1/Indian Bank submits that no doubt that Article 137 of the Limitation Act will be applicable even in IBC proceedings, however, in present cases, the proceedings initiated by the respondent-bank are within limitation. 5.1 He submits that the proceedings against the Corporate Debtor are pending before the NCLT since the year 2019, being (IB)-1913(ND)/2019. 5.2 He further submits that the petitioners, being the personal guarantors, have submitted eight OTS proposals. Thus, it is submitted that when the corporate liability is persisting, the liability of the petitioners as personal guarantors, will also subsist. 5.3 Learned counsel for respondent no.1-bank has further relied upon the Revival Letter dated 30th October, 2018, which has been given by the personal guarantor. Thus, it is submitted that the limitation period of three years will begin from this day, i.e. 30th October, 2018. He further submits that by counting three years from 30th October, 2018, the period of limitation is till 30th October, 2021. He further relies upon the judgment of the Supreme Court in the case of Suo Moto Writ Petition 3/2020, whereby, the Supreme Court had excluded the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLAT. Thus, it is submitted that the petitioners have an alternative efficacious remedy of filing the appeal before the NCLAT, and that the present petition would not be maintainable. 5.9 Learned counsel for the respondents further submits that there are subsequent judgments passed by the Supreme Court, wherein, the Supreme Court has categorically held, that OTS and entry in the balance sheets, will be considered as an admission, by the debtor or a guarantor. For this purpose, he relies upon the judgment dated 04th August, 2021 passed in C.A. No. 1650/2020, titled as Dena Bank Versus C. Shiva Kumar Reddy and Another. 6. At this stage, learned Senior Counsel, appearing for the petitioners submits, that he would be satisfied, if directions are issued to the learned Adjudicating Authority of the NCLT, to consider all the issues that have been raised by the petitioners with respect to limitation, in the first instance. 7. For this purpose learned Senior Counsel relies upon the order dated 23rd August, 2023 passed by the NCLT, which reads as under: IN THE NATIONAL COMPANY LAW TRIBUNAL: NEW DELHI SPECIAL BENCH (COURT II) Item No.-302 IB-490/ND/2023 IN THE MATTER OF: Indian Bank . .Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the dues from the Applicant by sale of personal assets except secured assets. 6. The Hon ble NCLAT in its decision in the matter of Amanjyot Singh Vs. Navneet Kumar Jain Ors. (Company Appeal (AT) (Insolvency) No. 961 of 2022) has upheld the view taken by NCLT, Delhi dismissing an application filed by the Appellant under section 94. The relevant para of the said order is reproduced below:- 7. Notice under Section 13, sub-section (2) is issued by the Bank for enforcing the security interest. Section 13, sub-section (1) and (2) of the SARFAESI Act is as follows:- 13. Enforcement of security interest.--(1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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