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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 ..... s) 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 Authority has appointed a Resolution Professional ("RP") upon an application under Section 95 of the Insolvency and Bankruptcy Code ("IBC"), 2016, in personal insolvency proceedings initiated against the petitioners, i.e., the personal guarantors . 4. Learned Senior Counsel appearing for the petitioners submits that the impugned order is a non-speaking, un-reasoned order, and has been passed without any application of mind. It is submitted that the impugned order has been passed without dealing with the preliminary objections of the petitioners on the maintainability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 Section 61 of the IBC, 2016, no appeal can be filed by the petitioners before the National Company Law Appellate Tribunal ("NCLAT"), against an order passed under Section 95 of the IBC. 4.6 Learned Senior Counsel appearing for the petitioners has also relied upon the judgment in the case of Gaurav Hargovindbhai Dave Versus Asset Reconstruction Company (India) Limited and Another, (2019) 10 SCC 572, to contend that the Supreme Court has categorically held that Article 137 of the Limitation Act, shall be applicable to the proceedings under the IBC. Thus, it submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 period from 15th March, 2021 till 20th March, 2022, from the limitation period. Thus, learned counsel appearing for the respondent submits that till 15th March, 2020, when the period of limitation was suspended by virtue of the order of the Supreme Court in the aforesaid case, the limitation period of only one year five months and fifteen days was over, in respect of the present cases. He submits that after 28th February, 2022, the remaining period of limitation which the respondents had, was one year seven months. Therefore, the respondents had time till 20th Sept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20, 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 .....Applicant/Petitioner Vs. Smt. Samiksha Mahajan .....Respondent Under Section: 95(1) of IBC, 2016 Order delivered on 23.08.2023 CORAM: SH. ASHOK KUMAR BHARDWAJ, SH. L. N. GUPTA, HON'BLE MEMBER (J) HON'BLE MEMBER (T) PRESENT: For the Applicant : Adv. Kanishka Pandey (Proxy) for Reema Khurana For the Respondent : Sr. Adv. P. Nagesh, Adv. Zain & Adv. Nakul Mohta ORDER Mr. P. Nagesh, Ld. Senior Counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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