Small Industries Development Bank Of ... vs Nikhilkumar Hasmukhlal Shah

Small Industries Development Bank of India ...Appellant(s)

Versus

Nikhilkumar Hasmukhlal Shah, S/o of Hasmukhlal ...Respondent(s) Jamnadas Shah (Personal Guarantor of Alps Liesure Holidays Pvt. Ltd.) Present: For Appellant : Ms. Pinki, Advocate For Respondents :

ORDER

(Hybrid Mode) 04.02.2025: This appeal is directed against the order dated

30.04.2024 passed by the National Company Law Tribunal, Ahmedabad, by

which the application filed under Section 95 of the IBC and the report of the

RP filed under Section 99 of the IBC has been rejected.

2. The Tribunal has held that since the invocation notice is dated

26.05.2020 and the application under Section 95 has been filed by the

applicant on 20.02.2024. Therefore, the application was not within the

period of limitation as prescribed under Section 238 A of IBC, 2016.

3. Counsel for the Appellant has submitted that the Tribunal has

committed an error in calculating the period of limitation because as per the

order of the Hon'ble Supreme Court passed in Miscellaneous Application No. 21 of 2022 filed in Miscellaneous Application No. 665 of 2021 filed in Suo

Motu Petition (C) No. 3 of 2020 In Re: Cognizance for Extension of Limitation

has held that "it is directed that the period from 15.03.2020 till 28.02.2022

shall stand excluded for the purpose of limitation as may be prescribed

under any general or special laws in respect of all judicial or quasi-judicial

proceedings".

4. Counsel for the Appellant has submitted that all the applications, be

that it may be, under Section 7, 9 or 10 or even Section 95 are regulated as

per Article 137 of the Limitation Act, 1963 for which the limitation to file an

application before the Tribunal is three years from the date of accrual of the

cause of action. It is submitted that in this case the triggering date is the

invocation notice for the guarantee i.e. 26.05.2020 which fall within the

period of 15.03.2020 and 28.02.2022 and this has to be excluded for the

purposes of counting the period of limitation for filing the application.

5. It is further submitted that the application, having been filed on

24.02.2024, counting the limitation from 01.3.2022, after excluding the

period from 15.03.2020 till 28.02.2022, shall fall within the period of three

years. Therefore, the application filed under Section 95 was within the

period of limitation but the Tribunal has not taken into consideration the

aforesaid decision of the Hon'ble Supreme Court delivered on 10.01.2022.

6. No one appears on behalf of the Respondent even today even though

they were proceeded against the ex-parte earlier.

7. In view of the aforesaid facts and circumstances, we are of the

considered opinion that there is merit in the submission of the appellant that the application filed under Section 95 is within the period of limitation

therefore, the Tribunal has committed an error in dismissing the application

filed under Section 95 on the issue of limitation.

8. The appeal is thus allowed and the matter is remanded back by

restoring the CP No. (IB)/100/AHM/2024 with a direction to the Ld.

Tribunal to decide the application bearing IA No. 639(AHM)2024 again

which has also been dismissed by the Ld. Tribunal.

9. With these observations, the present appeal is allowed. No order as

to cost. IA if any pending is closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical) sr/rr