In the matter of Nitin Jamnadas Thakkar vs. Axis Bank Limited

National Company Law Tribunal14 February 2024

CitationCP(IB) No. 291/NCLT/AHM/2023

Ratio decidendi

The rule this decision rests on

The Limitation Act, 1963 (Section 137, read with Section 238A of the Insolvency and Bankruptcy Code, 2016) applies to an application under Section 94 of the Code for initiation of the insolvency resolution process against a personal guarantor, so that such an application is subject to the three-year limitation period prescribed by the Limitation Act, and an application filed after that period, measured from the date of the demand or recall notice, is time-barred and liable to be dismissed.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE NATIONAL COMPANY LAW TRIBUNALAHMEDABADCOURT - 2ITEM No.302C.P. (IB)/291/AHM/2023Order under Section 94(1) IBCIN THE MATTER OF:NITIN JAMNADAS THAKKAR ........ApplicantVsAXIS BANK LIMITED ........RespondentOrder delivered on: 14/02/2024Coram:Mrs. Chitra Hankare, Hon’ble Member(J)Dr. Velamur G Venkata Chalapathy, Hon’ble Member(T)ORDERThe case is fixed for pronouncement of order.The order is pronounced in open Court vide separate sheet.-sd- -sd-DR. V. G. VENKATA CHALAPATHY CHITRA HANKAREMEMBER (TECHNICAL) MEMBER (JUDICIAL)CP(IB) No. 291 of 2023AHMEDABAD (COURT - II)CP(IB) No. 291 / NCLT / AHM / 2023(Filed under Section 94 of the Insolvency & Bankruptcy Code,2016)In the matter of:Mr. Nitin Jamnadas Thakkar,Residing at:Flat No. 501 & 502,5th Floor, B-Wing, Skiffle, Pant NagarShramsaphalya, Ghatkopar (East)Mumbai – 400077.….…ApplicantVERSUS1. Axis Bank LimitedHaving Branch Office at:3rd Floor, Trishul,Opp. Samartheshwar Temple,Near Law Garden, Ellisbridge,Ahmedabad – 380 0062. IDBI Bank LimitedHaving office at:IDBI Tower, NMG - West I,4th Floor, Plot No. C- 7, G Block,Opp. NSE, BKC, Bandra (E),Mumbai – 400 0513. Bank of Maharashtra,Having Branch office at:1st Floor, Janmangal, 45/47,CP(IB) No. 291 of 2023Mumbai Samachar Marg, Fort,Mumbai – 400 0014. Kotak Mahindra Bank Limited,Having office at,27, BKC, C - 27,G Block, Bandra (East),Mumbai – 400 051….…RespondentsOrder pronounced on: 14.02.2024Coram:MRS. CHITRA HANKAREHON’BLE MEMBER (JUDICIAL)MR. VELAMUR G VENKATA CHALAPATHYHON’BLE MEMBER (TECHNICAL)Appearance:For the Applicant : Mr. Harmish Shah, AdvFor the Respondent : Mr. Raju Kothari, Adv. a.w Mr. AnipGandhi, Adv. R-4JUDGMENT1. The Present Application is filed under Section 94(1) of theInsolvency and Bankruptcy Code, 2016 (hereinafter referredas "IBC, 2016") r/w Rule 6(1) of the Insolvency andBankruptcy (Application to Adjudicating Authority for IRPfor Personal Guarantors to Corporate Debtor) Rules, 2019.CP(IB) No. 291 of 2023The prayer made is to initiate the Insolvency ResolutionProcess (hereinafter referred as "IR Process") against theApplicant/Debtor who is the Personal Guarantor of M/s.Maruti Koatsu Cylinders Limited (hereinafter referred as the"Corporate Debtor") for an amounts of Rs.15,38,78,506.86/;18,26,05,060/-; 10,32,40,000/- and 2,76,93,067.86/- inrelation to the credit facilities extended by IDBI BankLimited; Axis Bank Limited; Bank of Maharashtra andKotak Mahindra Bank Limited respectively in favour ofCorporate Debtor.2. From the facts of the matter submitted and the documentsit is observed that the CIRP initiated against the CorporateDebtor M/s Maruti Koatsu Cylinders Limited was completedand the Corporate Debtor was restored on resolutionwherein a new applicant has taken over the affairs of thecompany on approval of the Resolution Plan by thisAdjudicating Authority. Accordingly, all the liabilities anddebts of the Corporate Debtor were discharged and a freshand new entity has taken over its functioning. The applicanthad given a personal guarantee in favour of variousfinancial creditors for having agreed to grant this facility.CP(IB) No. 291 of 2023

3. This application filed by the Personal Guarantor for the stated facility under section 94 of the IBC 2016 is examined under the relevant provisions of Sec 60(5) of IBC 2016. The jurisdiction of the Personal Guarantor who has executed the guarantee is not discharged of his liability of the corporate debtor in his individual capacity and it exists to all those in whose favour such guarantee is issued and the Corporate Debtor has been taken over by a new entity who is not a party any more to the stated guaranteed debt. The respondents in the matter are four financial creditors of which Axis Bank Limited is in Ahmedabad jurisdiction while others are not in this jurisdiction as their Head Offices are not in Ahmedabad. One of the respondents also appeared in the matter and raised certain objections. 4. Since it is a matter of invocation of guarantee, a recall notice was issued on 15.06.2015 in relation to the guarantee given by the personal guarantor which has not been acknowledged by the guarantor. This application has been filed on 08.12.2023 after a lapse of 8 years and 6 months (approx). Limitation in filing the application before this tribunal which is 3 years. In view of the same it is CP(IB) No. 291 of 2023 observed that the application is time barred as neither the demand notice has been replied nor an application has been moved for insolvency under personal guarantee has been made within the prescribed time limit. 5. In this regard, an order passed by NCLT, Amravati bench in CP IB No.33/95/AMR/2022 dated 17.02.2022 is referred by this Tribunal. The law of limitation under Sec 137 of the Limitation Act, 1963 applies to the IBC 2016 as decided by Hon'ble Supreme Court of India, Hon' ble NCLAT and as amended in Sec 238A of the IBC 2016. 6. Hence we pass following order: ORDER The application is dismissed. Interim memorandum, if any, had initiated on filing this application is removed and any action by any financial creditor that could be brought in under any other provisions of this or any other Act, applies.

-sd- -sd- DR. V. G. VENKATA CHALAPATHY CHITRA HANKARE MEMBER (TECHNICAL) MEMBER (JUDICIAL)

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