9911796707
TMI Blog2025 (4) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal is directed against the Order dated 17th April, 2024 passed by the National Company Law Tribunal (for short, NCLT), Mumbai Bench by which the application filed under Section 95 of the Insolvency and Bankruptcy Code, 2016 (the Code) read with Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 (for short, the Rules) for initiating insolvency resolution process against the present Appellant for the recovery of sum of Rs.179,06,57,146/- as on 30th November, 2021 has been allowed and Mr. Birendra Kumar Agrawal has been appointed as the Insolvency Resolution Professional (for short, IRP). Brief facts of the case are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 2017). The application filed under Section 95 was ultimately allowed by the Tribunal holding that the limitation is to be counted from the demand Notice dated 9.9.2021 and that Respondent No.1 Bank had duly invoked the guarantee vide Notice dated 16th January, 2017. 2. Aggrieved by the aforesaid two findings of the impugned Order, the present Appeal has been preferred by the guarantor. Counsel for the Appellant has argued that the Notice dated 16th January, 2017 does not carry the address which is provided in the deed of guarantee i.e. Shri Vipin Agarwal, son of Shersingh Agarwal, Indian inhabitant residing at 201, Arya Aanchal, Near Ahobila Math, Road No.8, Chembur (E), Mumbai - 400071 which is also the address mentioned in the acknowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich there is a reference about the Notice dated 16th January, 2017. The precise language used in this para is as under:- "....through advocate issued notice dated 16.oi.2017 to the Corporate Debtor and its guarantors demanding payment of the dues. However, the Corporate Debtor as well as the guarantors miserably failed and neglected to repay the outstanding dues and did not even respond to the said notice. A copy of the legal notice dated 16.oi.2017 is attached herewith and marked as Exhibit E." 3. In this regard, Counsel for Respondent No.1 has referred to Reply to Form 'C' in which it is submitted by the Appellant as under:- "It is submitted that the Advocates for the Petitioner, who addressed the Legal Notice dated 16.01.2017 (Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t i.e. 31st January, 2017, the period of 3 years has to be counted in terms of Article 137 of the Act as per which the application under Section 95 could have been filed up to 16th January, 2020. However, it is submitted that during this interregnum, the Appellant was pushed into CIRP by Order dated 14th October, 2019, but the balance sheet, in which the long term borrowings and short term borrowings have been shown pertaining to Respondent No.1 were signed before admission under Section 7 by the Corporate Debtor and after the Order of admission dated 14th October, 2019 by the RP who has stepped into the shoes of the Corporate Debtor. Counsel for Respondent No.1 has also submitted that even the balance sheet of the year 2019-2020 has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is different from the address provided in the guarantee deed. The argument of the Appellant that it has been clearly provided in the guarantee deed that it has to be sent on the address provided in the guarantee deed and can also be sent to a different address with prior intimation of the Appellant is of no consequence because in the entire pleadings, both before the Tribunal and before this Court, the Appellant has not said a word that the said Notice was never received. Rather the Appellant has taken a technical plea that Notice should have been sent on the address provided in the guarantee deed. In the absence of denial on the part of the Appellant that he did not receive the Notice dated 16th January 2017, having been sent on an addr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m."
9. In view of the aforesaid Clause in the guarantee deed, that any admission of liability by the borrower shall be deemed to be admission of debt by the guarantor as well, the balance sheets, being part of the record of the Tribunal has to be looked into for the purpose of extension of limitation from the date of acknowledgement. It is needless to mention that as per Section 18, the acknowledgement has to be in writing which of course in this case has been signed by the RP on behalf of the Corporate Debtor as well as the guarantor. No other issue has been raised.
10. In view of the aforesaid circumstances, we do not find any merit in the Appeal. Therefore, the same is dismissed. No cost. All pending I.A.s are hereby closed. X X X X Extracts X X X X X X X X Extracts X X X X
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