Section 95-Admitted

Even if there is no plea raised regarding limitation, the Court is obliged to examine the question of limitation before further proceeding in any matter | Default in the case of Personal Guarantors arises when the guarantees were invoked making them liable to pay the debt – Bank of Maharashtra Ltd. Vs. Mr. Suraj Bharatkumar Parekh – NCLT Mumbai Bench

The Hon’ble NCLT Mumbai Bench held that it is well settled that even if there is no plea raised regarding limitation, the Court is obliged to examine the question of limitation before further proceeding in any matter. The default in the case of Personal Guarantors arises when the guarantees were invoked making them liable to pay the debt. Generally, the default date of the principal borrower is the date of default for the guarantor also. However, it may not always be the same, rather it depends upon the nature and contents of the deed of guarantee executed by the guarantor.

Even if there is no plea raised regarding limitation, the Court is obliged to examine the question of limitation before further proceeding in any matter | Default in the case of Personal Guarantors arises when the guarantees were invoked making them liable to pay the debt – Bank of Maharashtra Ltd. Vs. Mr. Suraj Bharatkumar Parekh – NCLT Mumbai Bench Read Post »

Report of RP under Section 99 of IBC, 2016 is purely recommendatory in nature and cannot bind the Adjudicating Authority – Bank of Baroda Vs. Mr. Bharat Raj Punj – NCLT Allahabad Bench

In this judgment, following issues are covered:
A. A proceeding against a personal guarantor
B. Personal Guarantor resigned from the post of Managing Director
C. Guarantee is conditional and it is limited to the value of the assets inherited by him
D. Insolvency Petition filed by the Financial Creditor Bank of Baroda unilaterally without taking any approval from the Consortium of Banks
E. Report submitted by the RP is purely recommendatory in nature and cannot bind the Adjudicating Authority
F. The role of the Adjudicating Authority in personal insolvency
G. Personal Guarantor to have been given opportunity by a issuance of notice to him before the appointment of the RP
H. Conclusion

Report of RP under Section 99 of IBC, 2016 is purely recommendatory in nature and cannot bind the Adjudicating Authority – Bank of Baroda Vs. Mr. Bharat Raj Punj – NCLT Allahabad Bench Read Post »

Is a Section 95 application to initiate insolvency proceedings against a Personal Guarantor required to be filed collectively if the credit facility has been extended by more than one Financial Creditor/ Consortium? – Amit Dineshchandra Patel Vs. State Bank of India and Anr. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) The decision in Rakshit Dhirajlal (2022) ibclaw.in 932 NCLAT is not applicable in the present case since in this case there is no dispute inter se between the members of the consortium which had joined hands in signing the Security Trustee Agreement. None of the members of the consortium have raised any objection on the authority of Bank to file the Section 95 application.
(ii) Section 95 of IBC nowhere lays down any prescription that if the credit facility has been extended by more than one financial creditor, the Section 95 application is required to be filed collectively.

Is a Section 95 application to initiate insolvency proceedings against a Personal Guarantor required to be filed collectively if the credit facility has been extended by more than one Financial Creditor/ Consortium? – Amit Dineshchandra Patel Vs. State Bank of India and Anr. – NCLAT New Delhi Read Post »

Whether a notice issued under sections 13(2) and 13(4) of the SARFAESI Act, 2022 can be treated as an invocation of guarantee for the purpose of Section 95 of the IBC? – State Bank of India Vs. Amit Ranjan Mukherjee – NCLT Kolkata Bench

Hon’ble NCLT Kolkata Bench held that:

(i) The criteria for examining the date of default for the purpose of limitation for the Corporate Debtor and Personal Guarantor are not the same.
(ii) The date when guarantee is invoked by the Creditor is the date of commencement of period of Limitation for filing Application under Section 95 of IBC, 2016.
(iii) The Date of Default will be the date on which the guarantee was invoked.

Whether a notice issued under sections 13(2) and 13(4) of the SARFAESI Act, 2022 can be treated as an invocation of guarantee for the purpose of Section 95 of the IBC? – State Bank of India Vs. Amit Ranjan Mukherjee – NCLT Kolkata Bench Read Post »

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