Ramesh Kumar Agarwal vs State Bank Of India And Anr

Comp. App. (AT) (Ins) No. 1769 of 2024 IN THE MATTER OF: Ramesh Kumar Agarwal ...Appellant

Versus

State Bank of India & Anr. ...Respondents

Present: For Appellant : Mr. Dhananjaya Mishra, Ankan Rai, Ayan Rai, Adv. For Respondent : Mr. Arjun Asthana, Sidhartha Sharma, Nachiket Chawla, Adv. for R1 Mr. Bhavya Khatreja, Adv. for R2

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

22.09.2025: This appeal is filed by the Personal Guarantor of the CD,

namely, M/s Rythem Overseas Trade Ltd. against the order dated 22.07.2024

passed by the NCLT, Kolkata Bench by which application filed by State Bank

of India (SBI) bearing CP (IB) No. 385 of 2021 under Section 95 of the Code

for the default of Rs. 144,39,21,465.27/- has been admitted.

2. Counsel for the Appellant has submitted that the CD had already

slipped into CIRP vide order dated 07.11.2019 on an application filed by SBI

under Section 7 of the Code and CD is further facing liquidation by virtue of

an order dated 06.01.2021 passed by the Tribunal.

3. It is submitted that SBI filed this application under Section 95 of the

Code on the basis of four agreements of guarantee purported to have been

executed by the Appellant from time to time i.e. 09.04.2008, 31.03.2009,

30.11.2010 and 30.03.2013.

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4. It is submitted that guarantee was invoked on demand. The demand

notice under Section 13(2) of the SARFAESI Act, 2002 was issued on

19.06.2014 whereas the application under Section 95 of the Code came to be

filed on 10.11.2021. It is submitted that before filing the application under

Section 95, statutory notice under Rule 7 of the Insolvency and Bankruptcy

(Application to AA for Insolvency Resolution Process for Personal Guarantors

to CD) Rules, 2019 was issued on 06.07.2021.

5. The grievance of the Appellant is that the Tribunal has not decided the

issue of limitation raised before it though the same was noticed in para 10 of

the impugned order. In this regard, he has categorically pointed that

argument raised and noticed by the Tribunal which read "by a notice dated

19.06.2014 the FC invoked the supplemental deed of guarantee dated

30.03.2013"

6. It is submitted by the Appellant that the last deed of guarantee is

30.03.2013 and notice of demand is 19.06.2014 whereas the application has

been filed under Section 95 on 10.11.2021 though it could have been filed

only within the period of three years as per Article 137 of the Limitation Act

from the date of occurring of cause of action which allegedly accrued in this

case on 19.06.2014.

7. He has submitted that this contention has not been decided by the

Tribunal as the Tribunal has reproduced the portion of an order in para 11 of

the judgment from another order passed in CP (IB) No. 172 of 2021 titled as

UCO Bank Vs. Ramdeo Pandey decided on 03.05.2024. In this regard, he has

drawn our attention to para 24 of the said judgment which at pgs. 713 as

Annexure G of this appeal.

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8. He has thus submitted that it is a case of total non application of mind

on the part of the Tribunal.

9. Counsel for the Respondent has not denied this fact that para 11 of the

impugned order and para 24 of the order passed in the case of UCO Bank Vs.

Ramdeo Pandey is the same. However, he has submitted that the Appellant

may be allowed only to raise the issue of limitation in case this court intends

to remand the case back after setting aside the impugned order.

10. We have heard counsel for the parties and after examining the record,

are of the considered opinion that there is an error apparent on the face of the

order in so far as recording of the facts in para 11 of the impugned order

which seems to be taken by the Tribunal from para 24 of the decision in the

case of UCO Bank Vs. Ramdeo Pandey which is altogether a different case

and has no relation with the controversy in hand.

11. Counsel for the Appellant has submitted that his concern is only in

regard to the application under Section 95 having been filed after delay of

more than three years and shall not raise any other argument before the

Tribunal but for the same.

12. In view thereof, the present appeal succeeds and the impugned order is

set aside. The matter is remanded back to the Tribunal to decide the issue

raised by the Appellant regarding limitation i.e. the application filed under

Section 95 is beyond the period of three years. It is open to the Respondent to

contest the said plea of the Appellant for which we have not expressed any

opinion on the merit of this case.

13. The parties shall appear before the Tribunal on 27th October, 2025. 4

14. The parties shall bear their own costs. I.As., if any, pending is/are

hereby closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Md. Faiz Alam Khan] Member (Judicial)

[Mr. Indevar Pandey] Member (Technical)

Sc/RR