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TMI Blog2024 (3) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... wledgement 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. Consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant, as per the last guarantee agreement executed by the respondent dated 24.03.2015, credit facilities aggregating to Rs.19.65 crores were secured. It includes interest, charges, expenses, commissions, etc. The respondent also executed revival letter on 19.09.2017, so limitation started from that date. The Corporate Debtor defaulted in the repayment, hence, its credit facility account becomes Non-Performing Asset (NPA) on 27.09.2018. The applicant, therefore, issued notice on 14.06.2019 under Section 13(2) of the SARFAESI Act to the corporate debtor and personal guarantor. They have not filed reply to said notice. Thereafter, they filed application before DRT for recovery of an amount of Rs.19,00,36,798.08. The applicant also filed application under Section 7 of the IBC against the corporate debtor which was admitted. The application for liquidation of Corporate Debtor is pending before this Tribunal. According to the applicant, the debt was due on 25.10.2019 and default was occurred on 24.12.2019. The total amount of default is mentioned as Rs.24,41,53,898.12 together with interest. 3. This Tribunal vide order dated 04.12.2023 appointed Mr. Vikas Gautamchand Jain as Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it is held that The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim . The respondent has not placed on record any emphasis on the aforementioned judgments. The respondent prayed for dismissal of the application. 5. The applicant filed rejoinder explaining objections raised by the respondent to which the respondent further filed sur-rejoinder. 6. Heard Ld. Counsel for the applicant and Ld. Counsel for the respondent. Also perused the written submissions filed by the applicant and respondent as well as RP. 7. The applicant submitted that Demand Notice under SAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neness. 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. 11. The next point to be considered is of limitation. According to applicant, demand notice under Section 13(2) of the SARFAESI Act is to be treated as invocation of guarantee as it was issued to guarantors also. According to applicant, the date of default as recorded with NeSL was 30.06.2018 and date of NPA was 27.09.2018. The obligation of guarantor is co-extensive and co-terminus with that of the principal borrower as per Section 128 of the Indian Contract Act. The applicant in its written submission submitted that even if the limitation period is counted from the date of default or from the date of NPA or the date of receipt of demand notice, the application is within the period of limitation. From the date of notice, the application is filed within two years seven months and fifteen days. They have relied upon exclusion of limitation period in terms of orders of Hon'ble Supreme Court in Suo Motu Writ Petition (C) No.3 of 2020 and MA 21 of 2022. They have mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter and excluding the time stipulated therein, the applications filed by the applicants on 19-1-2021 are well within time . 13. It is necessary to mention that these orders only consider exclusion of period between 15.03.2020 to 02.10.2021. However, thereafter, again directions were issued by the Hon'ble Supreme Court in MA No. 21/2022 in MA 665 of 2021 in Suo Motu Writ Petition (C) No.3 of 2020. The facts of these cases are totally different than the facts of the present case. Hence, the ruling is not helpful to the applicant. 14. The respondent submitted that before Information Utility, the applicant has stated the date of default as 30.06.2018. As per notice under SARFAESI Act the date of default is shown as 27.09.2018, the date of default is the date of NPA. She has relied upon the judgment of Hon'ble NCLAT in Jagadish Prasad Sarada vs. Allahabad Bank in Co. Appeal No. 183 of 2020 wherein it was observed that the limitation period starts from the date of default. She has relied upon observations of various other judgments on this point but emphasis is not supplied. According to respondent, even if the date of default is taken as 30.06.2018 or 27.09.2018, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from 01.03.2022. (III) In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days, that longer period shall apply. (IV) ............ 17. In short, in para-I, it is directed that the period the from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation in respect of proceedings and balance period, if any, available from 03.10.2021 will be available from 01.03.2022. It is also directed that in cases where the limitation would have expired in between 15.03.2020 28.02.2022, irrespective of actual balance period the persons shall have limitation period of 90 days from 01.03.2022 and so on. Thus, it is clear that when the limitation period expired during 15.03.2020 till 28.02.2022, the directions in Para-III will be applicable. 18. 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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