State Bank of India Vs Rakesh Hariram Agarwal (NCLAT Delhi)
NCLAT Delhi held that withdrawal of first notice via second notice under Sec.13(2) of the SARFAESI Act doesn’t invalidate the effect of the recovery certificate which the DRT has passed. Accordingly, PIRP was laid in time and hence appeals are allowed.
Facts- The appellant is a Nationalised Bank. On 23.09.2009 it advanced a loan of Rs.10.50 Crores to a certain Asis Global Limited, to which the 1st respondent in both the appeals had given a personal guarantee. The principal borrower however, did not repay the loan amount promptly and the loan was notified by the appellant as NPA. In these circumstances on 31.12.2013 the appellant issued a notice u/s. 13 (2) of SARFAESI Act, 2002 both to the principal borrower and also to the personal guarantor.
On 18.03.2021, in the principal borrower initiated CIRP proceedings in C.P.4442 of 2018, the Adjudicating Authority had ordered liquidation. It is in this background, on 30.05.2022, the appellant had issued a demand notice in terms of Sec.95(4)(b) of IBC read with Rule 7 of the Sec.95(4)(b) read with Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority, etc.,) Rules, 2019.
Challenging two separate Orders of the Adjudicating Authority dismissing the two petitions filed by the appellant/Financial Creditor u/s.95 IBC for initiating insolvency proceedings against two personal guarantors of the principal borrower (the 1st Respondent in both the cases) on the ground of limitation, these appeals have been preferred.
