9911796707
TMI Blog2025 (5) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... to be noticed for deciding the Appeal are:- 2.1. The Principal Borrower- 'M/s. Surana Metacast (India) Private Limited' obtained various credit facilities for the business purposes from the State Bank of India and other Financial Creditors i.e. Respondents herein. Appellant executed Deed of Personal Guarantee dated 12.11.2021 in relation to the credit facilities availed by the Principal Borrower. The loan account of the principal borrower was declared NPA on 01.05.2023. A notice under Section 13(2) of the SARFAESI Act, 2002 was issued on 09.10.2023 to the principal borrower as well as to the Appellant personal guarantor demanding repayment of Rs.28,56,64,336.06/- as on 07.10.2023 with interest. Respondent Nos.2 and 3 similarly issued notice under Section 13(2) of the SARFAESI Act, 2002 and demanded amount from the Appellant. State Bank of India obtained an order on 06.04.2024 under Section 14 of the SARFAESI Act, 2002 for taking possession of the secured assets. On 05.08.2024, CIRP commenced against the principal borrower. State Bank of India also issued sale notice under Section 13(4) of the SARFAESI Act, 2002 for the some of secured assets. On 22.08.2024, Appellant filed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2023 to the Appellant was for the purposes of enforcement of security interest and the said notice cannot give any cause of action to the Appellant to file application under Section 94(1). 6. We have considered the submissions of the Counsel for the parties and perused the record. 7. The Adjudicating Authority by the impugned order after referring to notice under Section 13(2) dated 09.10.2023 issued by the State Bank of India held that Section 94(1) application has been filed without any cause of action and is premature. The finding of the Adjudicating Authority in paragraph 13 of the impugned order is as follows:- "13. Therefore, by looking at the facts of the present case and relying on the decision of Hon'ble NCLAT supra we are of the view that the present Petition is filed without any cause and is premature. Hence, CP/IB/317/AHM/2024 stands dismissed." 8. The first question which has arisen for consideration in the Appeal is as to whether notice dated 09.10.2023 issued under Section 13(2) of the SARFAESI Act, 2002 which was addressed to the Appellant gives any cause of action to file application under Section 94(1). The Appellant had executed the Guarantee Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days from the date of the Notice. The amount to be paid has also been mentioned as Rs.28,56,64,336.06/-. It is true that the Notice also mentioned to take steps under Section 13(4) of the SARFAESI Act, 2002. The question to be answered is as to whether the above notice had invoked the personal guarantee given by the Appellant or not. Adjudicating Authority in the impugned order has relied on judgment of this Tribunal in "Amanjyot Singh vs. Navneet Kumar Jain & Ors.- Company Appeal (AT) (Insolvency) No.961 of 2022" where this Tribunal has rejected Section 94 application filed by the personal guarantor relying on Section 13(2) notice. Adjudicating Authority relied on paragraphs 8 and 12 of the judgment which is as follows:- "8. The definition of 'borrower given in SARFAESI Act under Section-2 (f) is wide enough to include a Guarantor also. Section 13 is for enforcement of security interest. The borrower within the meaning of Section 13, sub-section (2) shall obviously include the Guarantor also. 12. We, thus, are satisfied that foundation which was laid down by the Appellant for initiating the CIRP against the Appellant, was not sufficient to admit Section 94 Application an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k being categorical and clear that no steps have been taken by the Bank against the Appellant, there is no cause for the Appellant to pray for initiation of CIRP against the Appellant - the Personal Guarantor. We, thus, do not find any good ground to interfere with the impugned order in this Appeal. The Appeal is accordingly dismissed. No costs." 12. Thus, the dismissal of the Appeal in the Amanjyot Singh's case was on the facts of the said case and has no application in the facts of the present case. The invocation of personal guarantee has to be in accordance with the terms of the Guarantee Agreement which is a settled law. Clause 7 of the Guarantee Agreement does not require any particular mode and manner of the demand notice. When demand notice is issued against the personal guarantor asking the personal guarantor to discharge its liabilities, the guarantee stands invoked. Whether notice under Section 13(2) in a particular case invoked the guarantee or not depends on the words and intent of the notice. For finding out as to whether Notice under Section 13(2) invoked the personal guarantee, the letters and words of the Notice has to be looked into to come to any conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted below : "11. Further we are also forwarding the copy of this notice to personal guarantor who are liable to pay the aforesaid outstanding amount. This notice is without prejudice to the Bank's right to initiate such other actions or legal proceedings as it deems necessary under any other applicable provisions of Law. This notice is in supersession of our earlier notices sent to you vide our letter no. SAMB/GRJ/2018-19/2002 dated 16.02.2019 which stands withdrawn. Copy forwarded to: Jayantibhai Pragjibhai Patel, C/O Jayantilal Bhorania, Gopal Society, Mahendranagar Road,, Morbi, Gujarat-363642 Babubhai Khimjibhai Patel, C/O Patel Timber Company, 7 Lati Plot, Morbi, Gujarat-363641 Bhagwanbhai Talsibhai Bhoraniya Gopal Society, Mahendranagar Road, Morbi, Gujarat-363642 Mavjibhai Nagarbhai Patel, Gopal Co-operative housing society, Mahendranagar road, Morbi-Gujarat- 363642 Jayantibhai Nagarbhai Patel, Gopal Co-operative housing society, Mahendranagar road, Morbi-Gujarat-363642. Jasuben Odhavjibhai Bhoraniya, Legal heir of Late Odhavji 'Talsibhai Bhoroniya, Gopal Co-operative housing society, Mahendranagar road, Morbi-Gujarat-363642. Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
