State Bank Of India vs Mr. Sanjay Baleshwar Rai

Company Appeal (AT) (Insolvency) No. 893 of 2024 (Arising out of Order dated 18.03.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad, Court - 2 in C.P.(IB)/61(AHM)2023)

IN THE MATTER OF: State Bank of India ...Appellant

Versus

Sanjay Baleshwar Rai ...Respondent

Present: For Appellant : Mr. Siddharth Sangal, Ms. Richa Mishra, Mr. Kashish Tewatia and Ms. Mrinalini Tandon, Advocates for SBI. For Respondent : Ms. Riya Dhingra and Mr. Anand Singh Sengar, Advocates.

With Company Appeal (AT) (Insolvency) No. 894 of 2024 (Arising out of Order dated 19.03.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad, Court - 2 in C.P.(IB)/60(AHM)2023)

IN THE MATTER OF: State Bank of India ...Appellant

Versus

Kanchan Sanjay Rai ...Respondent

Present: For Appellant : Mr. Siddharth Sangal, Ms. Richa Mishra, Mr. Kashish Tewatia and Ms. Mrinalini Tandon, Advocates for SBI. For Respondent : Ms. Riya Dhingra and Mr. Anand Singh Sengar, Advocates.

With Company Appeal (AT) (Insolvency) No. 1280 of 2024 (Arising out of Order dated 10.05.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad (Court-II) in C.P.(IB) No.100/NCLT/AHM/2023)

IN THE MATTER OF:

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 1 of 22 State Bank of India ...Appellant

Versus

Jayesh Tribhovandas Ganatra ...Respondent

Present: For Appellant : Mr. Siddharth Sangal, Ms. Richa Mishra, Mr. Kashish Tewatia and Ms. Mrinalini Tandon, Advocates for SBI. For Respondent : Ms. Riya Dhingra and Mr. Anand Singh Sengar, Advocates

With Company Appeal (AT) (Insolvency) No. 1281 of 2024 (Arising out of Order dated 10.05.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad (Court-II) in C.P.(IB) No.101/NCLT/AHM/2023)

IN THE MATTER OF: State Bank of India ...Appellant

Versus

Bipin Tribhovandas Ganatra ...Respondent

Present: For Appellant : Mr. Siddharth Sangal, Ms. Richa Mishra, Mr. Kashish Tewatia and Ms. Mrinalini Tandon, Advocates for SBI For Respondent : Ms. Riya Dhingra and Mr. Anand Singh Sengar, Advocates.

JUDGMENT

Ashok Bhushan, J.

All these Appeal(s) have been filed challenging the order passed by

Adjudicating Authority, National Company Law Tribunal, Ahmedabad Court-

2 rejecting Section 95 application filed by the State Bank of India ("SBI")

(Appellant herein) against the Personal Guarantors (Respondents).

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 2 of 22

2. Company Appeal (AT) (Ins.) No. 893 of 2024 has been filed challenging

the order dated 18.03.2024, by which order, C.P.(IB)/61(AHM)2023 filed

under Section 95 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as the "IBC") has been dismissed as barred by time. Company

Appeal (AT) (Ins.) No. 894 of 2024 has been filed challenging the order dated

19.03.2024, by which C.P.(IB)/60(AHM)/2023 has been dismissed as barred

by time. Company Appeal (AT) (Ins.) No. 1280 of 2024 has been filed against

the order dated 10.05.2024 by which order C.P.(IB) No.100/NCLT/AHM/2023

filed by the SBI has been dismissed as barred by time. Company Appeal (AT)

(Ins.) No. 1281 of 2024 has been filed against the order dated 10.05.2024 by

which order Adjudicating Authority dismissed C.P.(IB) No.101/NCLT/

AHM/2023 filed by the SBI as barred by time. These Appeal(s) raise common

question of law and have been heard together and are being decided by this

common judgment.

3. Company Appeal (AT) (Ins.) Nos. 893 & 894 of 2024 arise out of the

same facts, dates and events. Relevant facts giving rise to these two Appeal(s)

are:

(i) The Corporate Debtor ("CD") - M/s Kandla Energy and Chemicals

Ltd. was extended facilities by consortium of SBI. The

Respondents in these Appeal(s) are Sanjay Baleshwar Rai and

Kanchan Sanjay Rai, were the Personal Guarantors, who have

executed the personal guarantee on 21.03.2013 in favour of the

SBI for repayment of loans extended to the Principal Borrower.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 3 of 22

(ii) The Principal Borrower committed default on 22.07.2014 and

was declared as Non-performing Asset ("NPA"). The SBI filed OA

No. 511 of 2015 before the DRT, which issued a Decree on

25.06.2018.

(iii) The notice under Rule 7 of IBBI (Application to Adjudicating

Authority for Insolvency Resolution Process of Personal

Guarantors to Corporate Debtors) Rules, 2019 ("Rules 2019")

was issued to the Personal Guarantors on 12.10.2022 and

thereafter application under Section 95 was filed against the

Personal Guarantors on 24.01.2023.

(iv) The Adjudicating Authority by the impugned order dated

18.03.2024 rejected Section 95 application as barred by time.

The Adjudicating Authority held that by extending the benefit of

order of the Hon'ble Supreme Court order in Suo Motu Writ

Petition (C) No.3 of 2020, the time which was available for filing

the application was till 30.05.2022 and the application having

been filed on 24.01.2023 is barred by time.

Company Appeal (AT) (Ins.) Nos. 1280 & 1281 of 2024

(i) These Appeal(s) have been filed by the SBI against the Personal

Guarantors i.e. Jayesh Tribhovandas Ganatra and Bipin

Tribhovandas Ganatra of the CD - Shri Jalaram Rice Industries

Pvt. Ltd., to whom the SBI has extended the financial facilities.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 4 of 22 Guarantee was executed on 18.11.2020, 30.07.2012, 23.10.2012

and 07.04.2014.

(ii) The Principal Borrower committed default on 27.09.2014.

Section 9 proceedings were initiated against the Principal

Borrower, in which proceedings, the CD was directed for

liquidation.

(iii) An OA No.207 of 2015 was filed by the SBI before the DRT against

the Principal Borrower and the Personal Guarantors, in which a

Decree was passed on 19.03.2018 by the DRT.

(iv) A Demand Notice under Rule 7 of Rules 2019 was issued to the

Personal Guarantors on 10.05.2022. The SBI filed applications

under Section 95 against the Personal Guarantors, being CP (lB)

No. 100 (AHM)/2023 and CP (lB) No. 101 (AHM)/2023, in which

proceedings an IRP was appointed, who submitted a Report on

27.12.2023. The Adjudicating Authority heard the parties and

by the order dated 10.05.2024, rejected the application as barred

by time. The Adjudicating Authority took the view that by

extending the benefit of Hon'ble Supreme Court's order in Suo

Motu WP (Civil) No.3 of 2020, the application is barred by time.

Challenging the aforesaid orders, rejecting Section 95

application, these Appeal(s) have been filed.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 5 of 22

4. We have heard Shri Siddharth Sangal, learned Counsel appearing for

the Appellant(s); and Ms. Riya Dhingra, learned Counsel for the Personal

Guarantors.

5. Learned Counsel for the Appellant challenging the impugned order

submits that the Adjudicating Authority committed error in interpreting the

order of the Hon'ble Supreme Court passed in Suo Motu Writ Petition (C) No.3

of 2020. It is submitted that in view of the order passed by the Hon'ble

Supreme Court in Suo Motu Writ Petition (C) No.3 of 2020 and the last order

being 10.01.2022, the limitation was required to be extended for 90 days i.e.

upto 30.05.2022 or the balance period of limitation if it is more than 90 days

in cases where limitation expired during the period 15.03.2020 till

28.02.2022. In these Appeal(s) a Decree was passed by the DRT on

25.06.2018 in Company Appeal (AT) (Ins.) Nos. 893 & 894 of 2024 and

19.03.2018 in Company Appeal (AT) (Ins.) Nos. 1280 & 1281 of 2024. Thus,

three years' period shall expire on 24.06.2021 and 18.03.2021 respectively.

The Appellant was entitled for limitation period from 01.03.2020 and if the

period of limitation is more than 90 days, balance period of limitation in both

the above sets of Appeal(s) was more than a year, hence, the balance period

of 90 days was not applicable and Adjudicating Authority committed error in

holding that applications were barred by time. Learned Counsel for the

Appellant in support of his submission has relied on judgments of the Hon'ble

Supreme Court as well as judgment of the Delhi High Court and this Tribunal,

which we shall notice hereinafter.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 6 of 22

6. Ms. Riya Dhingra, learned Counsel appearing for the Personal

Guarantors refuting the submission of learned Counsel for the Appellant

submits that with effect from the Decree passed by the DRT, the limitation

period expired in the above set of Appeal(s) on 24.06.2021 and 18.03.2021,

which was period during 15.03.2020 to 28.02.2022, thus, the Applicant was

entitled for only 90 days' time from 01.03.2022, which is clear direction and

order of the Hon'ble Supreme Court passed on 10.01.2022 in Suo Motu Writ

Petition (C) No.3 of 2020. The Adjudicating Authority has rightly considered

the order of the Hon'ble Supreme Court and has held the application(s) were

barred by time. Learned Counsel for the Respondent also in support of her

submission has placed reliance on various judgments, which we shall refer to

hereinafter.

7. The question which has arisen in these Appeal(s) is with regard to effect

and consequence of the order of Hon'ble Supreme Court passed in Suo Motu

Writ Petition (C) No.3 of 2020. Learned Counsel for both the parties are

interpreting the order in different manner as noted above. Before we proceed

further, we need to recapitulate the facts and necessary period of limitation

in these Appeal(s). As noted above in Company Appeal (AT) (Ins.) Nos. 893 &

894 of 2024, Decree was passed on 25.06.2018 from which date, the

Applicant shall be entitled for fresh period of three years. The application(s)

under Section 95 in Company Appeal (AT) (Ins.) Nos. 893 & 894 of 2024 was

filed on 24.01.2023. In Company Appeal (AT) (Ins.) Nos. 1280 & 1281 of 2024,

Decree was passed by the DRT on 19.03.2018 and from which date fresh three

years period of limitation will be available to the Appellant, which will come

to an end on 18.03.2021. The applications under Section 95 in these set of

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 7 of 22 Appeal(s) in Company Appeal (AT) (Ins.) Nos. 1280 & 1281 of 2024 was filed

on 25.02.2023.

8. We need to consider the orders passed by the Hon'ble Supreme Court

in Suo Motu Wirt Petition (C) No.3 of 2020 in Recognizance for extension of

limitation. The first order which was passed by the Hon'ble Supreme Court

in the above Writ Petition was on 08.03.2021. The Hon'ble Supreme Court

looking to the spread of COVID-19 has issued directions in Paragraph-2,

which are as follows:

"2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issue the following directions: -

1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.

2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.

3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 8 of 22 proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

4. The Government of India shall amend the guidelines for containment zones, to state.

"Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.""

9. A subsequent order was passed by the Hon'ble Supreme Court on

23.09.2021 on MA No.665 of 2021, where for computing the period from

15.03.2020 till 02.10.2021 was excluded. Paragraph-8 of the said order is as

follows:

"8. Therefore, we dispose of the M.A. No.665 of 2021 with the following directions: -

I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.

II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply.

III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 9 of 22 Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

IV. The Government of India shall amend the guidelines for containment zones, to state.

"Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.""

10. The last order came to be passed by the Hon'ble Supreme Court in the

above Writ Petition on 10.01.2022. It is useful to notice the entire order

passed by the Hon'ble Supreme Court on 10.01.2022 in MA No.21 of 2022 in

Suo Motu Wirt Petition (C) No.3 of 2020, which is as follows:

1. In March, 2020, this Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/applications/suits/appeals/ all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID-19 pandemic.

2. On 23.03.2020, this Court directed extension of the period of limitation in all proceedings before Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders. On 08.03.2021. the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021.

3. Thereafter, due to a second surge in COVID-19 cases, the Supreme Court Advocates on Record Association (SCAORA) intervened in the Suo Motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23.03.2020 relaxing limitation.

The aforesaid Miscellaneous Application No.665 of 2021 was disposed of by this Court vide Order dated 23.09.2021, wherein this Court extended the period of limitation in all proceedings before the Courts/Tribunals including this Court w.e.f 15.03.2020 till 02.10.2021.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 10 of 22

4. The present Miscellaneous Application has been filed by the Supreme Court Advocates-on-Record Association in the context of the spread of the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country. Considering the prevailing conditions, the applicants are seeking the following:

i. allow the present application by restoring the order dated 23.03.2020 passed by this Hon'ble Court in Suo Motu Writ Petition (C) NO. 3 of 2020; and ii. allow the present application by restoring the order dated 27.04.2021 passed by this Hon'ble Court in M.A. no. 665 of 2021 in Suo Motu Writ Petition (C) NO. 3 of 2020; and iii. pass such other order or orders as this Hon'ble Court may deem fit and proper.

5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:

I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi- judicial proceedings.

II Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022 III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

6. As prayed for by learned Senior Counsel, M.A. No. 29 of 2022 is dismissed as withdrawn."

11. The directions issued in Paragraphs became the operative directions.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 11 of 22

12. The order of the Hon'ble Supreme Court passed in Suo Motu Writ

Petition (C) No.3 of 2020 has come for consideration and interpretation before

the Hon'ble Supreme Court itself in several cases, which we need to notice.

The first judgment in which Hon'ble Supreme Court had occasion to consider

the order of was in Prakash Corporates vs. Dee Vee Projects Ltd. - (2022)

5 SCC 112. The Hon'ble Supreme Court has specifically considered the

orders passed in Suo Motu Wirt Petition (C) No.3 of 2020 from Paragraphs-14

to 28. In Paragraph-28, following was directed:

"28. As regards the operation and effect of the orders passed by this Court in SMWP No. 3 of 2020, noticeable it is that even though in the initial order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] , this Court provided that the period of limitation in all the proceedings, irrespective of that prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15-3-2020 but, while concluding the matter on 23-9-2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250 : 2021 SCC OnLine SC 947] , this Court specifically provided for exclusion of the period from 15-3-2020 till 2-10-2021. A look at the scheme of the Limitation Act, 1963 makes it clear that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months' notice for a suit against the Government [ Vide Section 15 of the Limitation Act, 1963.] ). The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed."

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 12 of 22

13. The Hon'ble Supreme Court in the above case has held that when a

particular period is to be excluded in relation to any suit or proceeding,

essentially the reason is that such a period is accepted by law to be one not

referable to any indolence on the part of the litigant, but being relatable to

either the force of circumstances or other requirements of law.

14. The Hon'ble Supreme Court again had occasion to consider Suo Motu

Writ Petition (C) No.3 of 2020 in Arif Azim Company Ltd. vs. Aptech Ltd. -

(2024) 5 SCC 313. In Paragraphs-84 and 87, the Hon'ble Supreme Court

had occasion to consider the effect of the order passed in Suo Motu Writ

Petition (C) No.3 of 2020. In Paragraphs-84 and 87, following was held:

"84. Thus, in ordinary circumstances, the limitation period available to the petitioner for raising a claim would have come to an end after an expiry of three years, that is, on 27-3-2021. However, in March 2020, the entire world was taken under the grip of the deadly Covid-19 Pandemic bringing everyday life and commercial activity to a complete halt across the globe. Taking cognizance of this unfortunate turn of events, this Court vide order dated 23-3-2020 passed in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] directed the period commencing from 15-3-2020 to be excluded for the purposes of computation of limitation. The said extension of limitation was extended from time to time by this Court in view of the continuing pandemic. As a result, the period from 15-3-2020 to 28-2-2022 was finally determined to be excluded for the computation of limitation. It was provided that the balance period of limitation as available on 15- 3-2020 would become available from 1-3-2022.

87. The effect of the abovereferred order of this Court in the facts of the present case is that the balance limitation left on 15-3-2020 would become available w.e.f. 1-3-2022. The balance period of limitation remaining on 15-3-2020 can be calculated by computing the number of days between 15-3-2020 and 27-3-2021, which is the day when the limitation period would have come to an end under ordinary circumstances. The balance period thus comes to 1 year 13 days. This period of 1 year 13 days becomes available to the petitioner from 1-3- 2022, thereby meaning that the limitation period available to the petitioner for invoking arbitration proceedings would have come to an end on 13-3-2023.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 13 of 22

15. The Hon'ble Supreme Court in the above case, clearly held that the

effect of the order of the Court is that the balance limitation left on 15.03.2020

would become available w.e.f. 01.03.2022.

16. To the same effect is the judgment of this Tribunal in Indospirit

Distribution Ltd. vs. Kristal Spirits India Pvt. Ltd. - Company Appeal

(AT) (Ins.) No.503 of 2024, where after noticing the judgment of the Hon'ble

Supreme Court in Suo Motu Writ Petition (C) No.3 of 2020, this Tribunal has

held that application under Section 9 was within time. In the above case,

date of default was 01.11.2019 and application under Section 9 was filed on

31.08.2023. In Paragraphs-5 to 7, this Tribunal observed as follows:

"5. The limitation period for filing a Section 9 Petition under IBC is 3 years or 36 months. Now if the period from 15.03.2020 to 28.02.2022 is excluded then 23 months and 15 days stands excluded, and if the said 23 months and 15 days are excluded then total number of months remaining as on 28.02.2022 for the limitation to expire in the present case would be 31 months and 16 days which consequently would expire on 17.10.2024 and as Section 9 Petition was filed on 31.08.2023 it is well within the limitation period.

5. The Appellant categorically falls within the ambit of Para I of the said judgement whereby the period from 15.03.2020 to 28.02.2022 would stand excluded from the period of limitation. Even per Para IV of the judgement the limitation would extend. In Captain Sudhanshu Bhardwaj v. AIR India Limited (2023 SCC OnLine Del 8177), High Court of Delhi while interpreting the judgement of In Re: Cognizance for Extension of Limitation, expressly held that the period from 15.03.2020 till 28.02.2022 stood excluded for the purposes of the limitation. The court held:

"... 12. Thus, the entire period from 15.03.2020 to 28.02.2022 is required to be excluded in computing the period of limitation. It follows that the period of limitation would stop running on 15.03.2020 and would start running again on 01.03.2022. Consequently, the balance period of limitation remaining as on 03.10.2021 as contemplated in para 5 (II) would be the same as balance period of limitation remaining as on 15.03.2020.

13. It is incongruous to suggest that while the period from 03.10.2021 to 28.02.2022 is to be excluded for the purpose of calculating period of limitation, the same is not to be done for the period from 15.03.2020 to 02.10.2021. Doing so would be

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 14 of 22 inconsistent with the plain language of para 5 (I) of the order dated 10.01.2022. ..."

6. Thus the period from 15.03.2020 to 28.02.2022 stood excluded for limitation purposes and it results in the enlargement of time of limitation. Delhi High Court, while propounding this position, placed reliance on the judgement of Prakash Corporate v. Dee Vee Projects Limited (2022 5 SCC 112) passed by the Hon'ble Supreme Court wherein the Hon'ble Supreme Court held:

"... "28 As regards the operation and effect of the orders passed by this Court in SMWP No. 3 of 2020, noticeable it is that even though in the initial order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801], this Court provided that the period of limitation in all the proceedings, irrespective of that

prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15-3-2020 but, while concluding the matter on 23-9-2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250 : 2021 SCC OnLine SC 947], this Court specifically provided for exclusion of the period from 15- 3-2020 till 2-10-2021. A look at the scheme of the Limitation Act, 1963 makes it clear that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months' notice for a suit against the Government). The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed."

7. In the view of law settled above, we hold the petition under Section 9 IBC filed on 31.08.2023 is well within limitation, hence the petition is restored to its original number before Ld. NCLT. The appeal is thus allowed. Pending application, if any, are disposed of."

17. Learned Counsel for the Appellant has placed reliance on judgment of

the Delhi High Court in OMP (T) COMM. 31/2023 in Captain Sudhanshu

Bhardwaj vs. Air India Ltd. The Delhi High Court in Paragraphs 12 to 15

laid down following:

"12. Thus, the entire period from 15.03.2020 to 28.02.2022 is required to be excluded in computing the period of limitation. It follows that the

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 15 of 22 period of limitation would stop running on 15.03.2020 and would start running again on 01.03.2022. Consequently, the balance period of limitation remaining as on 03.10.2021 as contemplated in para 5 (II) would be the same as balance period of limitation remaining as on 15.03.2020.

13. It is incongruous to suggest that while the period from 03.10.2021 to 28.02.2022 is to be excluded for the purpose of calculating period of limitation, the same is not to be done for the period from 15.03.2020 to 02.10.2021. Doing so would be inconsistent with the plain language of para 5 (I) of the order dated 10.01.2022.

14. The order dated 10.01.2022 cannot be construed to reach the conclusion that limitation continues to run till 04.10.2021 but will stop running during the period 03.10.2021 till 28.03.2022. This would be contrary not only to the purport of the order dated 10.01.2022 but also to the expressed language of para 5 (I) of the said order dated 10.01.2022.

15. There is no merit in the contention of the respondent that above interpretation would render para 5 (III) of the order dated 10.01.2022 redundant. Para 5 (III) provides that where the limitation would have in normal circumstances expired between 15.03.2020 till 28.02.2022, the litigant is entitled to balance period of limitation remaining with effect from 01.03.2022 and if the balance period of limitation is less than 90 days then the litigant shall have a limitation period of 90 days from 01.03.2022. The purport of para 5 (III) is, thus, clearly to ensure that the litigant will be entitled to the greater of: - (i) balance period of limitation remaining with effect from 01.03.2022; (ii) a period of 90 days from 01.03.2022."

18. Another judgment relied by learned Counsel for the Appellant is the

judgment of this Tribunal in State Bank of India vs. Rakash Rariram

Agarwal and Sarvesh Hariram Agarwal - Company Appeal (AT) (Ins.)

Nos.246/2025 & 282/2025, which order has also been upheld by the

Hon'ble Supreme Court in Civil Appeal No.12639/2025. In the above case,

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 16 of 22 limitation was originally expired on 19.11.2021. This Tribunal in Paragraphs

20.2 and 21 laid down following:

"20.2 In the present case, as explained earlier, if limitation is reckoned from 20.11.2018 (the date on which the principal borrower had laid C.P.4442 of 2018 under Sec.10 IBC), then limitation would expire on 19.11.2021. And, even if the second part of paragraph 5 (II) of the order in the suo motu writ petition is applied such balance period which is in excess of 90 days should be available in entirety. However, in terms of the above authorities of the Hon'ble Supreme Court, the entire period when cause of action was in a state of eclipse (between 15.03.2020 to 28.02.2022) is required to be excluded and must be added after 28.02.2022, by bringing the entire case before it within para 5(I) of the said Order. The adjudicating authority has not only overlooked Para 5(I) of the above extracted suo motu order, but also applied the first part of Para 5(II) and from a wrong date as the terminus a quo.

"21. Now, if the entire period from 15.03.2020 to 28.02.2022 (approximately two years), limitation would be available till March, 2024. However, both the petitions to initiate PIRP involved in this batch of appeals were filed respectively in November and December, 2022. Needless to state they are within time."

19. The above judgment relied by the learned Counsel for the Appellant, do

support the submission of the Appellant that after 28.02.2022, the Appellant

was entitled for a larger period of limitation, which was balanced as per

computation indicated above.

20. Thus, the bone of contention of the parties in this case is as to whether

Applicant shall be entitled for the limitation of 90 days, since limitation in

both the set of Appeal(s) expired on 24.06.2021 and 18.03.2021, i.e. during

the period from 15.03.2020 to 28.02.2022. Learned Counsel for the Appellant

submits that with effect from 01.03.2022, the Appellant shall be entitled for

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 17 of 22 balance period of limitation and, not, only 90 days as contended by the

learned Counsel for the Respondent. It is submitted that period of 90 days

with effect from 01.03.2022 was given to those litigants whose period of

limitation has expired during the said period and they have lessor balance

period. Learned Counsel for the Appellant referring to Paragraph 5.III of the

Hon'ble Supreme Court in Suo Motu order dated 10.01.2022 contended that

the order clearly mentions that in the event the actual balance period of

limitation remaining, with effect from 01.03.2022 is greater than 90 days, that

longer period shall apply.

21. We may also notice the recent judgment of the Hon'ble Supreme Court

in IL and FS Financial Serviced Ltd. vs. Adhunik Meghalaya Steels P.

Ltd. - (2025) SCC OnLine SC 1567, in which case, the Hon'ble Supreme

Court had occasion to notice the order passed in Suo Motu Writ Petition (C)

No.3 of 2020, including the last order dated 10.01.2022. In the above case,

an application under Section 7 was filed by IL&FS on 15.01.2024. The

application was dismissed as barred by time, against which an Appeal was

filed in the Hon'ble Supreme Court. The Hon'ble Supreme Court held that

there was acknowledgement dated 12.08.2020, the question of limitation

expiring between 15.03.2020 and 28.02.2022 cannot arise and benefit of

entire period shall be granted. In Paragraphs 44 and 46, following was held:

"44. The balance-sheet of the financial year 2019-2020 was admittedly signed by the board of directors on August 12, 2020. This date was within the subsisting period of limitation for the reason that taking March 1, 2018 as the commencement of limitation, limitation ordinarily would have continued till February 28, 2021. Since an acknowledgment came into effect on August 12, 2020, limitation would have stood extended till August 11, 2023. However, covid-19 intervened resulting in this court passing a series of orders extending the period of

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 18 of 22 limitation. The relevant order applicable in this case is the order of January 10, 2022.

46. We have no manner of doubt that sub-paragraph (I) of paragraph 5 of the order of this court dated January 10, 2022 would apply and the entire period from March 15, 2020 to February 28, 2022 would stand excluded, which would mean that the limitation would, reckoning the acknowledgment of August 12, 2020, commence on March 1, 2022 and continue till February 28, 2025. Since the application has been filed on January 15, 2024 the same is within time. Limitation, in view of the acknowledgment as found above, having commenced only on August 12, 2020, the question of limitation expiring between March 15, 2022 and February 28, 2022 cannot arise. Hence, paragraph 5(III) of the order of this court dated January 10, 2022, has no application to the facts of this case."

22. The above judgment of the Hon'ble Supreme Court reiterates the

proposition that benefit of entire period from 15.03.2020 to 28.02.2022 is

available and the entire period shall be excluded. Since, in the facts of the

said case, limitation was not expiring between 15.03.2020 to 28.02.2022 due

to acknowledgment dated 12.08.2020, a fresh period of limitation was

available.

23. Reverting to the facts of the present case, in the present case, the

limitation for filing application under Section 95 was expiring on 24.06.2021

and 18.03.2021 respectively, which was within the period between

15.03.2020 to 28.02.2022, hence, the case was fully covered by Paragraph

5.III of the order of the Hon'ble Supreme Court dated 10.01.2022, which

entitles the Applicant to claim actual balance period of limitation remaining

and available with effect from 01.03.2022.

24. We now need to notice as to what was the balance period of limitation

in both the above set of Appeal(s). In Company Appeal (AT) (Ins.) Nos. 893 &

894 of 2024, a Decree was passed on 25.06.2018, thus, the three years' period

will come to an end on 24.06.2021 and in Company Appeal (AT) (Ins.) Nos.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 19 of 22 1280 & 1281 of 2024, a Decree was passed on 19.03.2018, thus three years'

period will come to an end on 18.03.2021. Thus, in both the cases, the

limitation was expiring during the period between 15.03.2020 to 18.02.2022.

25. We need to first notice the balance period of limitation in reference to

24.06.2021, which is the date when limitation of three years' expired in

Company Appeal (AT) (Ins.) Nos. 893 & 894 of 2024. In view of the order of

the Hon'ble Supreme Court, the period for limitation from 15.03.2020 to

28.02.2022 was excluded due to surge of COVID-19. Thus, with effect from

15.03.2020, no normal period of limitation shall run and the period which

expired between 15.03.2020 to 28.02.2022 has to be excluded for

computation of limitation. We, thus, need to notice that on 15.03.2020 how

much period was balance for limitation, i.e. from 15.03.2020 till 24.06.2021,

how much period had elapsed, which period has to be excluded while

computing the balance period of limitation. From 15.03.2020 to 24.06.2021,

a period of 01 year 03 months and 9 days had elapsed. Thus, on 01.03.2022,

the balance period of limitation available was 01 year 03 months and 9 days.

Thus, from 01.03.2022 adding the balance period of 01 year 03 months and

09 days, the date comes as 10.06.2023. Similarly, in Company Appeal (AT)

(Ins.) Nos. 1280 & 1281 of 2024, we need to look into the period, which

elapsed between 15.03.2020 to 18.03.2021, which comes to 01 year and 03

days. Thus, the balance period available was 01 year and 03 days with effect

from 01.03.2022 and when we add the balance period of 01 year and 03 days

for filing an application, the period will come to an end on 04.03.2023. In

Company Appeal (AT) (Ins.) Nos. 893 & 894 of 2024, admittedly the

application was filed on 24.01.2023 and in Company Appeal (AT) (Ins.) Nos.

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 20 of 22 1280 & 1281 of 2024, the application was filed on 25.02.2023, i.e. well before

04.03.2023.

26. We are not impressed by the submission of learned Counsel for the

Respondent that in both the above set of Appeal(s), the SBI was only entitled

for 90 days from 01.03.2022. The tenor of the entire order dated 10.01.2022

as noted above, clearly mentions that benefit for the period from 15.03.2020

to 28.02.2022 was to be extended by excluding the said period and balance

period of limitation remaining as on 01.03.2022 would become available.

Thus, considering all the directions in Paragraphs 5.I to 5.IV, it is clear that

the period from 15.03.2020 to 28.02.2022 shall be excluded for computing

the period prescribed under the law. Thus, even considering Article 137 of

the Limitation Act, 1963 with regard to application under Section 95, while

computing the period of three years with effect from date of Decree of the DRT,

the period elapsed between 15.03.2020 till expiry of normal period of

limitation of three years, has to be excluded.

27. In view of the aforesaid we are of the view that giving the benefit of order

of the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No.3 of 2020, last

order being 10.01.2022, the application filed by SBI against the Respondent(s)

- Personal Guarantors, cannot be said to be barred by time. The Adjudicating

Authority in the impugned order committed error in observing that time

available was 90 days period upto 30.05.2022. It is useful to notice

Paragraph-5 of the impugned order dated 18.03.2024 in Company Appeal (AT)

(Ins.) Nos. 893 & 894 of 2024, which is as follows:

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 21 of 22 "5. This application has been filed on 24 Jan 2023 which is beyond the time period specified under Sec 238 A of IBC even after reckoning the period allowed as per Hon'ble Supreme Court in Suo Motto application extending the period during COVID 2019, which was available (between 15 March 2020 to 28.2.2022) within a 90 day period i.e., upto 30 May 2022."

28. To the similar effect is the order of the Adjudicating Authority in

Company Appeal (AT) (Ins.) Nos. 1280 & 1281 of 2024, where Adjudicating

Authority although noted that the period from 15.03.2020 to 28.02.2022 has

to be excluded while calculating the period of limitation, but erred in rejecting

the application as barred by time.

29. In result, all the Appeal(s) need to be allowed. The orders impugned in

these Appeal(s) rejecting Section 95 applications are set aside.

C.P.(IB)/61(AHM)2023, C.P.(IB)/60(AHM)2023, C.P.(IB) No.100/NCLT/

AHM/2023 and C.P.(IB) No.101/NCLT/AHM/2023 are revived before the

Adjudicating Authority for fresh consideration in accordance with law. We

make it clear that apart from question of limitation, we have not considered

any other question in these Appeal(s). Partes shall bear their own costs.

[Justice Ashok Bhushan] Chairperson

[Indevar Pandey] Member (Technical) New Delhi 12th March, 2026

Ashwani

Company Appeal (AT) (Ins.) Nos.893, 894, 1280 & 1281 of 2024 22 of 22