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2023 (5) TMI 612 - AT - Insolvency and BankruptcyInitiation of CIRP - Period of limitation - NCLT rejected the application - Corporate Guarantor who had guaranteed the obligation of the Borrower - The Adjudicating Authority observed that on the one hand the facility agent and the trustee participated in the proceedings before BIFR and at the same time they were pursuing the foreign suit - seeking exclusion of period during the pendency of the reference till 01.12.2016 when the SICA was repealed - HELD THAT:- There is no dispute raised regarding the liability of the Corporate Debtor towards the Financial Creditors and the guarantee by the Respondent. The account of the Borrower was declared as NPA in 2011 but the proceedings were initiated by the Financial Creditors against the Guarantor after issuance of loan acceleration notice dated 03.02.2012 issue to Borrower recalling the entire outstanding loan amount with interest and by invocation of the corporate guarantee given by the Respondent, vide invocation notice dated 21.02.2012, calling upon the Respondent to pay the entire outstanding amount due. However, no payment was made by the Respondent and hence the date of default cannot be taken to be a date of NPA of the Borrower but the date of default has to be taken when the guarantee invocation notice dated 21.02.2012 was given. While the foreign suit was pending the Respondent filed a reference with the BIFR on 06.11.2012 which was registered on 07.12.2012 and the Respondent was restrained from disposing of or alienating in any manner any fixed assets without the consent of the BIFR. Neither the foreign suit was contested by the Respondent mentioning the pendency of the reference nor mentioned about the foreign suit in the reference. The foreign suit was decreed on 08.04.2014. The Facility Agent also filed an application for intervention before the BIFR for their impleadment but the said application was not decided. It has also been held in the case of Hyderabad Abrasives & Minerals [2002 (12) TMI 497 - HIGH COURT OF ANDHRA PRADESH] that the benefit of exclusion of period for computing the limitation period, spent while the Company was before BIFR shall be applicable even to those creditors who did not approach BIFR. However, in the present case, the Appellant made an effort to become a party by filing a Miscellaneous Application before the BIFR but the said application was not decided though the Respondent filed the reply also to the said application - In the present case, on referring to the dates then date of invocation of guarantee is 21.02.2012. Form A Case No. 74 of 2012 (reference) is 06.11.2012, the reference was registered on 07.12.2012 and the SICA was repealed w.e.f. 01.12.2016 vide notification dated 25.11.2016, therefore, the limitation would start running from 01.12.2016 and shall go up to 01.12.2019. The application under Section 7 has admittedly been filed on 30.08.2019 which is prior to the expiry of period of limitation. It has been held in the case of Gouri Prasad Goenka Vs. Punjab National Bank [2020 (5) TMI 65 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and a Judgment of Delhi of Delhi High Court rendered in the case of IFCI FACTORS LIMITED VERSUS RAMSARUP INDUSTRIES LIMITED & ORS. [2019 (8) TMI 1866 - DELHI HIGH COURT] that the period shall start running from the date of repeal of SICA. The order under challenge is patently illegal - Appeal allowed.
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