9911796707
TMI Blog2024 (7) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... n the limitation. It is well settled that Financial Creditor is permitted to supplement the Application by filing the additional documents. Present is a case where the issue of invocation of guarantee of Personal Guarantor was specifically raised in the reply of the Personal Guarantor. The question of date of invocation of personal guarantee of the Personal Guarantor is yet to be decided by the Adjudicating Authority. The Adjudicating Authority has granted time to the Personal Guarantor to file reply to the amended petition and to oppose the new date of default to be inserted by the Petitioner . By virtue of the order dated 03.05.2024, the date of new default, which is inserted by the Appellant is 22.12.2021 and when the Demand Notice was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntor of the Financial Creditor has been filed challenging order dated 03.05.2024 passed by National Company Law Tribunal, Court Room No.1, Mumbai Bench, by which order, the Adjudicating Authority has permitted the Financial Creditor to amend the date of default as pleaded in the rejoinder affidavit, with the liberty to the Personal Guarantor to oppose the new date of default by filing a reply. 2. Brief facts of the case necessary to be noticed for deciding this Appeal are: (i) Punjab National Bank ( PNB ) filed an Application under Section 95, sub-section (1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC ) against the Appellant Personal Guarantor of the Corporate Debtor M/s Poscho Steels Pvt. Ltd., claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor to amend the date of default as pleaded in the rejoinder with liberty to Personal Guarantor to oppose the new date of default by filing a reply. (v) The Appellant aggrieved by the order has come up in this Appeal. 3. We have heard learned Counsel for the parties and perused the record. 4. The learned Counsel for the Appellant submits that Financial Creditor cannot be allowed to change the date of default as claimed in the Application, which takes away the valuable right of defense available to the Personal Guarantor. It is submitted that the Respondent cannot be allowed to change the date of default in Application. 5. The submission of the Appellant has been refuted by the learned Counsel for the Respondent Bank. It is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rantors and Mortgager). The guarantee given by Guarantors and Mortgagers was invoked and they were asked to pay the amount of Rs.181,27,26,781.51/-. Copy of the said Application was also sent to the Appellant, who was Guarantor. When we look into the Notice dated 19.01.2022, it is clear that it is a Notice addressed to Guarantors and Mortgagers, who were asked to make the payment as demanded. 8. In the reply, which was filed by the Appellant to Section 95 Application, in paragraph-5, the Appellant itself has referred to Notice dated 22.12.2021. Paragraph 5 of the reply is as follows: 5. The respondent states that demand notice dated 10.05.2022 in Form B was sent by the applicant to the respondent. In response to the same, the respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 17 of the guarantee agreement dated 22.06.2011, in order to invoke personal guarantee, the applicant ought to have sent demand notice under the said guarantee agreement dated 22.06.2011 and not otherwise. Hence the present petition fails for non invocation of guarantee. 10. A rejoinder was filed by the Financial Creditor to the reply of the Personal Guarantor, where notice dated 22.12.2021 was pleaded and brought on record in paragraph 5 (g). It was further pleaded in paragraph 9 (c) that the date of default is mentioned as 01.12.2015, is the date of default in respect of the Corporate Guarantor and date of default in respect of Personal Guarantor is 22.12.2021. Paragraph 9 (c) of the rejoinder is as follows: 9(c) The date of default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the Application is filed within the limitation. It is well settled that Financial Creditor is permitted to supplement the Application by filing the additional documents. Present is a case where the issue of invocation of guarantee of Personal Guarantor was specifically raised in the reply of the Personal Guarantor. Hence, the Appellant in the rejoinder, brought relevant materials and pleadings on the record. The question of date of invocation of personal guarantee of the Personal Guarantor is yet to be decided by the Adjudicating Authority. The Adjudicating Authority has granted time to the Personal Guarantor to file reply to the amended petition and to oppose the new date of default to be inserted by the Petitioner . By virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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