Mrs. Sapna Vicky Shah vs Dbs Bank India Limited
- CitationCompany Appeal (AT) (Insolvency) No. 2378 of 2024
Ratio decidendi
The rule this decision rests on
The Tribunal declined to adjudicate the guarantor's objection that an ECLGS facility falls outside the personal guarantee, holding that where the record before it contains neither the facility letter nor the relevant ECLGS documents, the appellate forum cannot express an opinion on that objection; such a contention is to be examined by the Resolution Professional, who may, on the basis of the facility letter and related documents, determine whether the facility is covered by the personal guarantee before placing a repayment plan before the Committee of Creditors. The Tribunal further held that an appellate court in Section 95 proceedings will not interfere with an admission order where it finds no error in the Adjudicating Authority's admission, including on the question of limitation computed from the invocation of the personal guarantee and the issuance of the Form B notice prior to filing.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Vicky Sukanraj Shah ...Appellant Versus DBS Bank India Ltd. & Anr. ...Respondents
Present: For Appellant : Mr. Varun Chugh, Mr. Jenil Shah, Mr. Atul Dong, Mr. Saurish Shetye, Advocates. For Respondents :
With
Company Appeal (AT) (Insolvency) No. 2379 of 2024
IN THE MATTER OF:
Mrs. Lalitkumari Sukanraj Shah ...Appellant Versus DBS Bank India Ltd. & Anr. ...Respondents
Present: For Appellant : Mr. Varun Chugh, Mr. Jenil Shah, Mr. Atul Dong, Mr. Saurish Shetye, Advocates. For Respondents :
With
Company Appeal (AT) (Insolvency) No. 2380 of 2024
IN THE MATTER OF:
Sahil Sukanraj Shah ...Appellant Versus DBS Bank India Ltd. & Anr. ...Respondents
Present:
Cont'd.../ For Appellant : Mr. Varun Chugh, Mr. Jenil Shah, Mr. Atul Dong, Mr. Saurish Shetye, Advocates. For Respondents :
With
Company Appeal (AT) (Insolvency) No. 15 of 2025
IN THE MATTER OF:
Mrs. Sapna Vicky Shah ...Appellant Versus DBS Bank India Ltd. & Anr. ...Respondents
Present: For Appellant : Mr. Varun Chugh, Mr. Jenil Shah, Mr. Atul Dong, Mr. Saurish Shetye, Advocates. For Respondents :
With
Company Appeal (AT) (Insolvency) No. 16 of 2025
IN THE MATTER OF:
Sukanraj Bhabutmal Shah ...Appellant Versus DBS Bank India Ltd. & Anr. ...Respondents
Present: For Appellant : Mr. Varun Chugh, Mr. Jenil Shah, Mr. Atul Dong, Mr. Saurish Shetye, Advocates. For Respondents :
ORDER
(Hybrid Mode)
01.08.2025: Heard learned counsel for the Appellant. These appeals
have been filed by the Personal Guarantors of the Corporate Debtor - SKS
Textiles Pvt. Ltd. challenging the order dated 22.10.2024 passed by the NCLT,
Comp. App. (AT) (Ins.) No. 2378, 2379, 2380 of 2024, 15 & 16 of 2025 2 of 5 Mumbai Bench-I by which Section 95 application filed by the DBS Bank
alleging default committed of Rs.28,79,39.439.56 only as on 31.10.2024 has
been admitted. The personal guarantee of the Guarantor was invoked on
18.05.2021 which has been noticed by the Adjudicating Authority in Para 32
of the order and the Adjudicating Authority held that application is within
time and after invocation, notice in Form B was issued and thereafter,
application under Section 95 was filed.
2. Learned counsel for the Appellants challenging the order submits that
one ECLGS facility was extended to the Corporate Debtor on 27.10.2020 with
respect to which no personal guarantee was given by the Appellants, hence,
default of said facility cannot be fastened on the Appellant nor the said
amount could be recovered from the personal guarantee of the Appellant. He
however, submits that the Appellants are ready to give repayment plan to the
Resolution Professional and Resolution Professional may consider their
objection regarding ECLGS independently.
3. We have considered the submissions of learned counsel for the
Appellant and perused the record.
4. Learned counsel for the Appellant referred to the notice under Section
13(2) which was issued for invoking personal guarantee dated 11.10.2021
which is at page 342 of the paper book. He has referred to Para 15 of the
notice, which provides as follows:
"15. As per the terms of the aforesaid fresh facility letter bearing Ref No. BSU/IBG-3/ECLGS/113 of 2020
Comp. App. (AT) (Ins.) No. 2378, 2379, 2380 of 2024, 15 & 16 of 2025 3 of 5 dated 27.10.2020, the repayment of the said facilities were continued to be secured by the personal duly hypothecated under Deed of Hypothecation executed from time to Guarantee of the You No. 2 to 6 and hypothecation of tangible movables time and as detailed in Forth Schedule written herein below and also by the mortgaged of right, title and interest of You No. 1 in the property described in First Schedule written herein below, also by mortgaged of right, title and interest of the You No. 2 and 3 in the property described In Second Schedule written herein below and also by mortgaged of right, title and interest of the You No. 4 and 6 in the property described in Third Schedule written herein below."
5. The only grievance raised by the Appellant is with regard to ECLGS
facility which is referred to in above that the said facility is not covered under
personal guarantee of the Appellant. The copy of the fresh facility letter dated
27.10.2020 is not on record to nor other details of ECLGS and other
documents are before the Court, hence, we are, in these appeals, cannot
express any opinion with regard to objection which is raised by the Appellant.
We, however, are of the view that Appellant may submit repayment plan to
the Resolution Professional and the said objections of the Appellant may be
looked into by the Resolution Professional while finalizing the repayment plan.
We make it clear that we have not expressed any opinion on the submissions
of made by the Appellant and the Resolution Professional may look into the
facility letter dated 27.10.2020 and other documents executed with respect to
ECLGS facility and form an opinion as to whether the ECLGS facility is also
Comp. App. (AT) (Ins.) No. 2378, 2379, 2380 of 2024, 15 & 16 of 2025 4 of 5 covered by the personal guarantee or not and thereafter put the repayment
plan before the CoC. We do not find any error in the order of the Adjudicating
Authority admitting Section 95 application warranting our intervention.
Subject to observation as above, Appeals are dismissed.
6. Learned counsel for the Appellant seeks for and is allowed two weeks'
time to file repayment plan.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical) Archana/nn
Comp. App. (AT) (Ins.) No. 2378, 2379, 2380 of 2024, 15 & 16 of 2025 5 of 5
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