Sarita Patni Personal Guarantor Of ... vs Assets Care & Reconstruction ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Comp. App. (AT) (Ins) No. 1773 of 2024 (Arising out of the Order dated 05.07.2024 passed by the National Company Law Tribunal, Kolkata Bench, in IA No. 344/2024 in Company Petition (IB) No. 253/KB/2023)

IN THE MATTER OF: Sarita Patni Personal Guarantor of Ankit Metal & Power Ltd. 15, Burdwan Road, Kolkata 700027 ...Appellant

Versus

1. Assets Care & Reconstruction Enterprise Limited Acting in its capacity as trustee of ACRE-39 Trust, ACRE-43 Trust, ACRE-45 Trust, ACRE-46 Trust

Regd. Office at: 2nd floor, Mohan Dev Building 13, Tolstoy Marg, New Delhi-110001 Corporate Office at: 502, C Wing, One BKC, Bandra Kurla Complex, Mumbai- 400051 ...Respondent No. 1

2. Aditya Kumar Tibrewal Resolution Professional of Sarita Patni Personal Guarantor of Ankit Metal & Power Ltd. 2, Hare Street, Nicco House, 1st floor, Room no. 29, Kolkata-700001 ...Respondent No. 2 Email- adityatibre@gmail.com Comp. App. (AT) (Ins) No. 1773 of 2024

Present For Appellant: Mr. Siddhant Jaiswal, Mr. Abhishek Verma, Advocates.

For Respondents: Mr. Soorjya Ganguly, Ms. Niharika Sharma, Ms. Kiran Sharma, Ms. Pooja, Advocates for R-1.

Mr. Sidhartha Sharma, Mr. Arjun Asthana, Ms. Aakanksha Sahni, Advocates for R-2.

JUDGEMENT

(16.07.2026)

NARESH SALECHA, MEMBER (TECHNICAL)

1. The present appeal has been filed by the Appellant i.e., Sarita Patni, who

is the Personal Guarantor of Ankit Metal & Power Ltd. ("Corporate Debtor"),

under Section 61 of the Insolvency and Bankruptcy Code, 2016 ('Code') against

the Order dated 05.07.2024 ("Impugned Order") passed by the National

Company Law Tribunal, Kolkata Bench ("Adjudicating Authority") in IA No.

344/2024 in Company Petition (IB) No. 253/KB/2023.

Assets Care & Reconstruction Enterprise Limited, who is the Financial

Creditor, is the Respondent No.1 herein.

Aditya Kumar Tibrewal, who is the Resolution Professional of the

Corporate Debtor, is Respondent No. 2, herein.

2. The Appellant submitted that despite the mandatory statutory framework

contained under Section 99(1) of the Code, Respondent No. 2 filed IA 344/2024

Page 2 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

on 06.02.2024 after expiry of the prescribed period of ten days. The Appellant

contended that the said application sought to place on record the report under

Section 99(1) recommending initiation of CIRP against the Appellant. It was

submitted that no application for condonation of delay accompanied IA 344/2024

and no explanation was offered by Respondent No. 2 for the admitted delay in

filing the report. The Appellant contended that the filing of IA 344/2024 beyond

the statutory period without seeking condonation of delay amounted to a direct

contravention of the mandatory provisions of Section 99(1) of the Code. It is

submitted that the statutory timelines under the Code are sacrosanct in nature and

cannot be ignored mechanically. The Appellant further submitted that the

Adjudicating Authority erred in entertaining the said application without first

adjudicating upon the issue of limitation and delay.

3. The Appellant further submitted that an additional procedural irregularity

occurred insofar as the Appellant herself was not arrayed as a party in IA

344/2024. It is contended that despite the fact that the application directly affected

the rights and liabilities of the Appellant, Respondent No. 2 deliberately omitted

impleading the Appellant in the interlocutory application. The Appellant

submitted that such deliberate exclusion effectively prevented the Appellant from

filing objections and defending herself against the allegations contained in the

report.

Page 3 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

4. The Appellant contended that the Adjudicating Authority nevertheless

proceeded with hearings in IA 344/2024 on 06.02.2024, 13.03.2024 and

24.04.2024. It is submitted that during the said hearings, the Appellant sought

time to file a reply to IA 344/2024. The Appellant further submitted that vide

order dated 24.04.2024, the Adjudicating Authority permitted the Appellant to

file reply subject to payment of costs quantified at Rs. 5,000/-. The Appellant

submitted that acting bona fide and under abundant caution, she proceeded to

comply with the order imposing costs and accordingly issued letter dated

12.06.2024 addressed to the Calcutta High Court Advocate's Clerks'

Philanthropic Trust for deposit of the costs amounting to Rs. 5,000/- through

cheque bearing no. 018628 dated 20.05.2024. The Appellant contended that the

said compliance demonstrated her bona fide intention to prosecute her defence

diligently and in accordance with the directions passed by the Adjudicating

Authority.

5. The Appellant submitted that she is a female senior citizen and owing to

her age and circumstances, some reasonable time was required for preparation,

approval, execution and notarisation of the reply. The Appellant further submitted

that the functioning of the Adjudicating Authority stood affected on account of

Court vacations from 25.05.2024 till 08.06.2024, which further contributed to the

delay in filing the reply.

Page 4 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

6. The Appellant further submitted that due to the fact that she had not been

impleaded as a party in IA 344/2024, serious procedural impediments arose in

filing the reply electronically. It is contended that the e-filing portal did not permit

filing of reply in the interlocutory application since the Appellant's name was

absent from the array of parties therein. The Appellant submitted that such

procedural obstacle was a direct consequence of the intentional omission

committed by Respondent No. 2.

7. The Appellant contended that owing to the aforesaid technical and

procedural difficulty, the reply ultimately had to be filed electronically in the

main petition being CP (IB) 253/KB/2023 on 21.06.2024 at 11:09 A.M. It is

submitted that the Appellant had thus substantially complied with the directions

issued by the Adjudicating Authority and had taken all necessary steps for

bringing her objections on record. The Appellant submitted that despite the

aforesaid compliance, when the matter was taken up on 21.06.2024, the

Adjudicating Authority abruptly closed the Appellant's right to file reply and

reserved the matter for orders. It is contended that such action was highly

prejudicial and contrary to settled principles of natural justice, particularly when

the reply had already been e-filed on the same day.

8. The Appellant further submitted that immediately thereafter, on

24.06.2024, the matter was specifically mentioned before the Adjudicating

Authority. The Appellant contended that prior intimation regarding such

Page 5 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

mentioning had also been duly furnished to the Respondents through email dated

24.06.2024. It is submitted that during the said mentioning, the Adjudicating

Authority was expressly informed that the reply to IA 344/2024 had already been

e-filed on 21.06.2024 and that the imposed costs of Rs. 5,000/- had also been duly

deposited.

9. The Appellant submitted that upon being apprised of the aforesaid facts,

the Adjudicating Authority permitted the Appellant to submit physical copies of

the reply before the Registry. It is further submitted that the Appellant complied

with the said direction on the very same date and duly filed the hard copy of the

reply with the Registry, acknowledgement whereof was also obtained.

10. The Appellant however contended that despite permitting filing of the

reply and taking the same on record, the Adjudicating Authority completely failed

to consider the contents thereof while passing the impugned order dated

05.07.2024. It is submitted that the impugned order incorrectly records that no

reply had been filed by the Appellant, despite the admitted fact that the reply had

already been filed electronically as well as physically and had been accepted by

the Registry. According to the Appellant, such recording amounts to a patent

factual error and demonstrates complete non-application of mind.

11. The Appellant further submitted that the impugned order was consequently

passed without considering the objections raised by the Appellant against IA

344/2024 and thereafter CP (IB) 253/KB/2023 itself came to be allowed. It is

Page 6 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

contended that the entire process adopted by the Adjudicating Authority stands

vitiated on account of violation of audi alteram partem and denial of fair hearing.

12. The Appellant further submitted that another serious irregularity is

apparent from the communication dated 15.01.2024 issued by Respondent No. 2,

wherein the Appellant was incorrectly described as a Personal Guarantor of "UIC

Udyog Limited." The Appellant contended that UIC Udyog Limited has

absolutely no connection whatsoever with the present proceedings initiated under

Section 95 of the Code.

13. The Appellant submitted that she had never executed any personal

guarantee on behalf of UIC Udyog Limited at any point of time. It was therefore

contended that the reference to UIC Udyog Limited in the communication issued

by Respondent No. 2 was wholly erroneous, misleading and contrary to the

factual record. The Appellant alleged that Respondent No. 2 intentionally and

maliciously used the name of UIC Udyog Limited with the object of misleading

both the Appellant as well as the Adjudicating Authority. It is submitted that the

said conduct was deliberate in nature and intended to create confusion regarding

the identity of the alleged guarantor and the underlying transaction.

14. The Appellant further contended that Respondent No. 2, in collusion with

Respondent No. 1, intentionally issued the incorrect communication to the

Appellant so as to prevent her from responding effectively to the same, since the

Appellant had no connection with UIC Udyog Limited. According to the

Page 7 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

Appellant, such conduct amounts to fraud upon the Appellant and abuse of the

insolvency process contemplated under the Code.

15. The Appellant submitted that the Adjudicating Authority failed to properly

scrutinize the report submitted by Respondent No. 2 and proceeded to pass the

impugned order without examining the discrepancies and irregularities appearing

on the face of record. It is contended that the Adjudicating Authority ignored the

material objections raised by the Appellant and failed to exercise the degree of

judicial scrutiny required under law.

16. The Appellant further contended that the impugned order stands in clear

violation of principles of natural justice since the same was passed without duly

considering the reply and objections filed by the Appellant. The Appellant

submitted that once the reply had been accepted on record by the Adjudicating

Authority, the Adjudicating Authority was under a legal obligation to consider

the same before rendering any final findings.

17. The Appellant submitted that Rule 150 of the National Company Law

Tribunal Rules mandates that orders are to be pronounced only after hearing both

the Applicant and the Respondent. The Appellant contended that in the present

case, the impugned order was passed without granting effective hearing to the

Appellant and without considering her duly filed reply, thereby rendering the

impugned proceedings wholly unsustainable in law.

Page 8 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

18. Concluding its arguments, the Appellant requested this Appellate Tribunal

to set aside the Impugned Order and allow this appeal.

19. Per contra, the Respondent No. 1 and the Respondent No. 2 (henceforth

called as the Respondents since, their rebuttal are similar) denied all averments

made by the Appellants as misleading and baseless.

20. The Respondents submitted that the Appellant has deliberately attempted

to create an impression as though she was denied an opportunity of hearing,

whereas the record unequivocally establishes that repeated opportunities were

granted to the Appellant for filing reply and contesting the proceedings. The

Respondents further submitted that the Appellant is attempting to misuse the

appellate jurisdiction of this Appellate Tribunal for restoration of her right to file

reply affidavit, which had already been closed by the Adjudicating Authority after

granting adequate and repeated indulgence. It is contended that despite obtaining

several opportunities and extensions, the Appellant intentionally failed to file

reply within the prescribed timelines and continued adopting dilatory tactics

solely to delay adjudication of the insolvency proceedings.

21. The Respondents submitted that the chronology of proceedings before the

Adjudicating Authority demonstrates that the Appellant had complete knowledge

of the proceedings and was repeatedly granted opportunities to place her defence

on record. It is contended that notices were duly issued, the matter was listed from

time to time and the Appellant was represented through counsel during the course

Page 9 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

of hearings. According to Respondent No. 1, the proceedings were conducted in

a fair, orderly and transparent manner and therefore no allegation of denial of

natural justice can survive.

22. The Respondents further contended that the Appellant was specifically

granted multiple opportunities to contest the report submitted by the Resolution

Professional under Section 99 of the Code. It is submitted that even after repeated

adjournments and extensions granted in the interest of justice, the Appellant

failed to file any effective reply within time. The Respondent No. 1 therefore

submitted that the present Appeal is merely an indirect attempt to reopen and

restore a procedural right which stood validly closed by judicial order. The

Respondents submitted that the Appellant's principal defence revolves around the

communication dated 15.01.2024 issued by the Resolution Professional wherein

reference was allegedly made to "UIC Udyog Private Limited." It is contended

that the Appellant has isolated the said typographical error while completely

ignoring the surrounding circumstances and subsequent proceedings which

clearly identified the subject matter and parties involved.

23. The Respondents submitted that the said communication referred to the

order dated 08.01.2024 passed by the Adjudicating Authority whereby the

insolvency resolution process against the Appellant was initiated. It is contended

that the Appellant was fully aware of the proceedings arising out of the said order

Page 10 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

and cannot now seek to avoid liability on the basis of an inadvertent typographical

error contained in one communication.

24. The Respondents further submitted that the Resolution Professional had

subsequently filed the report under Section 99 of the Code on 05.02.2024 and the

said report clearly identified the Corporate Debtor and the Appellant. It is

contended that the report was available to the Appellant and despite having

knowledge thereof, the Appellant never raised any objection before the

Adjudicating Authority regarding the alleged typographical error in the letter

dated 15.01.2024.

25. The Respondents submitted that throughout the proceedings before the

Adjudicating Authority, including hearings conducted on 06.02.2024 and

13.03.2024 and subsequent dates, the Appellant remained represented through

counsel and actively participated in the proceedings. It is therefore contended that

the Appellant cannot now claim ignorance of the proceedings or violation of

principles of natural justice.

26. The Respondents submitted that with respect to the Appellant's challenge

concerning IA 344/2024 and closure of the right to file reply, the same is contrary

to the procedural history of the matter. It is contended that the Appellant was

granted repeated opportunities and therefore cannot claim deprivation of hearing.

The Respondents further submitted that it stands recorded in the order dated

30.09.2024 that the Appellant's reply was accepted by the Registry only on

Page 11 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

28.06.2024, whereas the right to file such reply had already stood closed by the

Adjudicating Authority on 27.04.2024. It is contended that the subsequent

acceptance by Registry cannot retrospectively revive a procedural right that had

already been closed. The Respondents submitted that the allegations regarding

non-consideration of objections in IA 344/2024 and challenge to orders dated

21.06.2024 and 05.07.2024 are wholly misconceived and unsupported by the

record.

27. The Respondents further submitted that even the purported reply affidavit

sought to be relied upon by the Appellant does not dispute the existence of debt

or occurrence of default. It is contended that the Appellant failed to controvert

the substantive findings contained in the Resolution Professional's report and

instead sought to raise only technical and procedural objections devoid of merit.

28. The Respondents submitted that the Corporate Debtor acknowledged the

outstanding debt and liability in its balance sheets from the financial year 204

onwards up to the latest balance sheet dated 31.03.2021. It is contended that such

acknowledgements also took place through various settlement arrangements

entered into with the lender banks and the Appellant. The Respondents submitted

that the Appellant has nowhere denied either the existence of debt or the

occurrence of default in the present Appeal. It is contended that the sole defence

raised by the Appellant pertains to alleged denial of opportunity, which stands

conclusively disproved from the record of proceedings. The Respondents further

Page 12 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

submitted that the Appellant had executed a Deed of Guarantee dated 09.12.2014

in favour of SBICAP Trustee Company Limited acting as Security Trustee for

the lender banks. It is contended that the said guarantee was unconditional,

irrevocable and continuing in nature. The Respondents relied upon Clause 2 of

the Deed of Guarantee, which obligated the guarantors to forthwith pay all

amounts payable by the borrower upon occurrence of default without demur upon

demand by the lenders or security trustee. The Respondents further relied upon

Clause 20 of the Deed of Guarantee, which expressly stipulates that the guarantee

is irrevocable and that the obligations of the guarantors would not stand

discharged except upon complete performance of obligations. The Respondents

also relied upon Clause 22 of the Deed of Guarantee, which provides that the

guarantee shall remain continuing and operative until complete repayment of the

restructured facilities together with all interest, charges, costs and other monies

payable under the transaction documents. The Respondents relied upon Clause

25 of the Deed of Guarantee, which stipulates that the rights and powers conferred

upon the lenders are joint and several in nature and enforceable accordingly. In

view of the aforesaid clauses, the Respondents submitted that the liability of the

Appellant as personal guarantor is absolute, co-extensive, continuing and

irrevocable until discharge of the entire outstanding liabilities of the Corporate

Debtor.

Page 13 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

29. The Respondents contended that the Adjudicating Authority rightly

admitted both the Corporate Debtor and the Appellant into the insolvency

resolution process after due consideration of the material placed on record. It is

submitted that the impugned order dated 05.07.2024 is a reasoned order passed

upon judicial consideration and therefore does not warrant interference by this

Appellate Tribunal. The Respondents further submitted that the insolvency

process has already progressed substantially and interference at the present stage

would defeat the very objective of the Code, namely resolution in a time-bound

manner.

30. The Respondents submitted that the purported mentioning notice dated

24.06.2024 was allegedly addressed only to Resolution Professional and not to

Respondent No. 1. It is contended that the matter itself was listed before NCLT

Kolkata Bench-I whereas the mentioning was allegedly sought before Bench-II,

thereby rendering the entire exercise procedurally improper and misleading. The

Respondents also submitted that the Appellant has concocted a false narrative

regarding alleged technical difficulties in filing reply affidavit. It is contended

that despite claiming inability to file reply due to technical issues, the Appellant

successfully e-filed the reply affidavit on 21.06.2024 at 11:09 A.M., which itself

disproves the allegations of impossibility or procedural prejudice.

31. Concluding arguments, the Respondents requested this Appellate Tribunal

to dismiss the appeal.

Page 14 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

Findings

32. It is observed that Ankit Metal & Power Limited ("Corporate Debtor"),

engaged in the business of iron and steel, was the principal borrower and the

Appellant was one of its personal guarantors.

33. It is noted that the debt sought to be enforced by the Lender Banks traces

back to various credit facilities sanctioned by a consortium of banks, namely IDBI

Bank, Indian Overseas Bank, Allahabad Bank and State Bank of India, (Lender

Banks) in favour of Ankit Metal & Power Limited. It is contended that the said

facilities were originally governed by the Working Capital Consortium

Agreement dated 14.09.2007 executed amongst the Corporate Debtor and lender

Banks. A Master Restructuring Agreement dated 25.09.2014 was subsequently

executed between the lender banks and the Corporate Debtor.

34. The facilities were secured by restructuring agreements, deeds of

hypothecation and other security documents, however, the Corporate Debtor

defaulted in repayment and failed to regularise its accounts, leading to

classification of its accounts as NPAs by the lender banks. The joint lenders'

forum then decided to exit the Corporate Debtor from the CDR Scheme on

December 28, 2016, and recovery actions were initiated against the Corporate

Debtor and its personal guarantors, and the Corporate Debtor acknowledged its

Page 15 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

outstanding debt and default in its balance sheets from 2014 to 31 March 2022

and through various settlement arrangements.

In connection thereto, the Appellant along with other guarantors had

executed a Joint Deed of Guarantee in favour of the lender banks, and thereafter

the aforesaid lender banks assigned the secured debts in favour of Respondent

No. 1 through Assignment Agreements dated 28.03.2018, 29.06.2018 and

31.07.2018. By virtue of these assignments and in view of continued default of

the Corporate Debtor despite opportunities to repay, the Respondent No. 1 filed

a Section 7 application, C.P.(IB) 91/KB/2023, which was admitted on May 3,

2024. Based on said assignment of debt, Respondent No. 1 instituted proceedings

under Section 95 of the Code against the Appellant and proposed the appointment

of Mr. Aditya Kumar Tibrewal as the Resolution Professional. It is noted further

that pursuant thereto, the Adjudicating Authority vide order dated 08.01.2024

appointed Respondent No. 2 as the Resolution Professional and directed him to

submit a report under Section 99(1) of the Code along with his recommendation

regarding admission or rejection of the application.

35. During hearing, we specifically asked the Appellant to state clearly

whether any dispute exists regarding debt and default by the Corporate Debtor or

by Personal Guarantee given by the Appellant in favour of the lender banks on

account of financial facilities obtained by the Corporate Debtor from the lender

banks. The Appellant fairly submitted that there is no dispute regarding existence

Page 16 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

of debt and resultant default by the Corporate Debtor. The Appellant conceded

that she has given personal guarantee which were irrevocable and the same was

indeed invoked by the lender banks. However, the main ground of which the

appeal has been filed by the Appellant are two fold i.e., the Appellant has not

been given an opportunity to represent her case and the Adjudicating Authority

has not considered the reply filed by the Appellant. The other ground taken by

the Appellant is that the communication made by the Respondent No. 2 mentions

the UIC Udyog Limited as Corporate Debtor which the Appellant had no

connection. It is the case of the Appellant that on these two grounds her appeal

should be allowed and the impugned order need to be set aside. We shall examine

both these issues one by one.

36. It is noted that the application under Section 95 of the Code was admitted

on 13.12.2023. The Resolution Professional (RP) was appointed on 8 January

2024. On 6 February 2024, the Adjudicating Authority directed the Resolution

Professional to file a report upon service to the Personal Guarantor/Appellant and

granted the Personal Guarantor time to file a response. Despite this, the Personal

Guarantor failed to appear or file a reply. The Adjudicating Authority then

granted further opportunities, directing the Personal Guarantor/Appellant to file

a reply by 13 February 2024, followed by another opportunity by 13 March 2024,

and another by 20 March 2024. On 24 April 2024, despite the last opportunity,

the Adjudicating Authority granted a two days' extension with a cost of Rs. 5,000.

Page 17 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

On 26 April 2024, the respondent made submissions on merits. Even on 21 June

2024, the Adjudicating Authority observed that the reply affidavit was still not

filed. Finally, on 5 July 2024, the Adjudicating Authority reserved the matter for

orders after admitting the application under Section 100 of the Code, taking into

account the existence of debt, default, and other relevant aspects, while noting the

repeated non-compliance with its directions including payment of costs. Thus, we

note that many opportunities were accorded to the Appellant to file reply in the

pending proceedings before the Adjudicating Authority and despite these, the

Appellant failed to file the reply.

37. The Appellant has not denied that the facilities, extended to the Corporate

Debtor, were secured by way of a personal guarantee given by the Appellant. It

is also an admitted fact that subsequently, the Corporate Debtor defaulted in

repayment and its account was classified as Non-Performing Assets. The

Appellant became liable for the amounts so outstanding, and no payment has been

made by her. The Respondent No.1, in its Application under Section 95 of the

Code, has elaborated upon the details of the debt and default thereof. A perusal

of the Report, filed by the Resolution Professional amplify that such details of the

debt owed by the Appellant have been considered by the Resolution Professional,

in detail, before arriving at a conclusion. The Appellant, being an unconditional,

irrevocable and continuing personal guarantor is under clear obligations under

the deed of guarantee, particularly when the existence of debt and default is

Page 18 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

neither denied nor disputed and multiple instances of non-payment have

culminated in the initiation of proceedings under Section 95.

38. As regard, first issue the star point of the Appellant is that she has been

denied principal of natural justice, the Appellant has given the sequence of date

when hearing took place. The Appellant also fairly conceded that during hearing

on 06.02.2024, 13.03.2024 and 24.03.2024, the Appellant sought time to file

reply to IA No. 344 of 2024, however, the Adjudicating Authority vide order

dated 24.04.2024 allowed the Appellant to file reply to IA No. 344 of 2024

subject to deposition of cost of Rs. 5000/-. The Appellant also empathetically

submitted that Respondent No. 2 intentionally filed IA No. 344 of 2024 without

making Appellant as a party to prevent Appellant from filing objections.

39. The Appellant also submitted that reply was filed in IA No. 344/2024 in

Company Petition (IB) No. 253/KB/2023 and since the Appellant was not a party

to the said IA the e-filing portal was not allowing her to file any reply in the said

IA. The Appellant also brought to our notice that she is a senior lady citizen and

it took sometime for her to get draft reply and get it approved and signed and

notaries. The reply was e-filed to the main petition on 21.06.2024, however, the

Adjudicating Authority closed the rights of the Appellant to file the reply and

reserved the main petition for passing the impugned order.

Page 19 of 24

Comp. App. (AT) (Ins) No. 1773 of 2024

40. In this connection, we would like to take into consideration the order of the

Adjudicating Authority (National Company Law Tribunal, Kolkata Bench,

Kolkata, Division Bench No. I) which reads as under :-

41. From above, it is seen that the Adjudicating Authority had categorically

stated that "Despite repeated opportunities, reply affidavit has not been filed and

the cost has also not been paid by the Personal Guarantor. It appears that the

Personal Guarantor is not interested to raise objections to the report. Heard.

Reserved for orders."

42. In this connection, we also note that the Appellant through her counsel had

written to Respondent No. 1 that on 24.06.2024 regarding mentioning of case in

Page 20 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

National Company Law Tribunal, Kolkata Bench, Kolkata, Division Bench No.

II. The communication reads as under :-

"This is to inform you that the captioned matter shall be mentioned by us before

the NCLT, Kolkata Bench 2 at 2:30 pm today or so soon thereafter as and when

the business of the Hon'ble bench shall permit when please attend".

43. From above, we note that although the hearing was taking place by

National Company Law Tribunal, Kolkata Bench, Kolkata, Division Bench No.

I, as noted in order sheet dated 21.06.2024 quoted earlier, however, the Appellant

chose to mention the same to National Company Law Tribunal, Kolkata Bench

(Court No. II) , Kolkata, and that to on 24.06.2024 when the matter was itself

reserved by the Court No. 1 on 21.06.2024. We do not find any logic for the

same. It does not support the cause of the Appellant in any way.

44. Based on above, we find that the Adjudicating Authority has indeed given

several opportunities to the Appellant to file the reply. The Adjudicating

Authority on the last occasion on 24.06.2024 imposed the cost of Rs. 5,000/-

despite that while reserving the order the reply was not filed by the Appellant. As

such, we do not find any error in the impugned order on this account and do not

find merit in the contentions of the Appellant that the impugned order was

pronounced without taking into consideration the reply of the Appellant.

45. Now, we will examine the second issue raised by the Appellant regarding

Respondent No. 2's error in mentioning the name of the UIC Udyog Limited as

Page 21 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

Corporate Debtor. It is the case of the Appellant that the Resolution Professional

of the Appellant had served a letter dated 15.01.2024 relating to the affairs of one

UIC Udyog Private Limited, referring the same the Corporate Debtor but the

Appellant had no business relationship with such entity. In this connection, we

note that said letter refer to order details of the Adjudicating Authority order dated

January 8, 2024, through which the CIRP was initiated. Subsequently, the

Respondent No.1 filed his report in the matter on February 5, 2024 and such

report clearly identifies Ankit Metal & Power Ltd. as the Corporate Debtor in the

matter, and such report was also available with the Appellant at the relevant time.

It has been also brought out that the subsequent hearings in the matter including

multiple opportunities for filing a response to the RP's report were within the

knowledge of the Appellant and at no point in time, before the Adjudicating

Authority or otherwise did the Appellant sought an exception to the letter dated

15.01.2024 on account of the typographical error in the said letter. Thus, the

Appellant's case of there being violation of principles of equity and natural justice

does not seem convincing.

46. We find that in the original section 7 petition as well as Section 95

application name of the Ankit Metal & Power Ltd. was clearly mentioned as name

of the Corporate Debtor. The Respondent N. 2/ Resolution Professional fairly

conceded that there was a typographical error only once in communication to the

Appellant w.r.t when the name of Corporate Debtor i.e., using name of UIC

Page 22 of 24 Comp. App. (AT) (Ins) No. 1773 of 2024

Udyog Limited instead of Ankit Metal & Power Ltd.. However, the same has not

caused any prejudice to the Appellant since the Appellant was well aware of the

facts especially the correct name of the Corporate Debtor being Ankit Metal &

Power Ltd. and had indeed attended the hearing through counsels.

47. The plea of the Appellant that she was not personal guarantor to UIC

Udyog Limited and has no connection with the UIC Udyog Limited under Section

95 proceedings and further, no personal guarantee was executed by the Appellant

on behalf of the UIC Udyog Limited are not convincing in view of above details.

We also note that the Appellant has never raised this issue of clerically error in

communication by Respondent No. 2 dated 15.01.2024 before the Adjudicating

Authority.

48. During hearing, we also find that no prejudice, whatsoever, has been

caused to the Appellant by singular clerical error by Respondent No. 2/

Resolution Professional as the Appellant was very well aware of the correct name

of the Corporate Debtor being Ankit Metal & Power Ltd. for whom she gave

personal guarantee to the Lender Banks. The Appellant acknowledged the

guarantee given by her in respect of financial facilities granted to the Corporate

Debtor by the lenders. It is reiterated that the Appellant has not disputed the

existence of debt and default or her signing of the personal guarantee.

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Comp. App. (AT) (Ins) No. 1773 of 2024

49. As such, we do not find any error in the impugned order. The appeal fails

and stand rejected. No cost. I.A.'s, if any, are closed.

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Naresh Salecha] Member (Technical) Sim

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