A personal guarantor can only file an application under Section 94 of the IBC after the personal guarantee has been invoked and a subsequent default has occurred.

ORDER

(Hybrid Mode)

1.07.04.2026: I.A. No. 1566 of 2026 :- This is an application praying for condonation of 15 days delay in filing of the appeal. The appellant in paragraph 4 & 5 of the application has given following reasons for condonation of delay:

“4. That since the office of the present counsels and the Appellant are situated in different states, i.e., Delhi and Amaravati respectively, while the impugned order was passed by Ld. NCL T in Mumbai, the same further delayed the drafting and filing of the accompanying Appeal before this Hon'ble Tribunal. Pursuant thereto, drafting of the Appeal by the undersigned counsels, discussions between the Appellant and its counsels and finalization of the draft Appeal consumed some unforeseeable time around 2 weeks which the Appellant could not avoid and were beyond the control of the Appellant and the same.

5. After finalization of the draft appeal, the same was pursued and approved by the appellant and after compilation of documents the said accompanying appeal was finalized on 08.11.2025. Since, 9th November was a Sunday, therefore the Appeal could only be e-filed on 10.11.2025.”

The delay in filing of the appeal is within condonable period. We find sufficient cause shown in paragraph 4 & 5 of the application. Delay condoned.

I.A. No. 1470 of 2026:- This is an application praying for condonation of 85 days delay in re-filing of the appeal. It is submitted by Ld. Counsel for the appellant that after the appeal was filed several defects were communicated on 19.11.2025 which were cleared within 07 days and appeal was re-filed on 26.11.2025 and the second time the defects were communicated on 28.11.2025 which were cleared and appeal was re-filed. In paragraph 5 to 9 reasons have been given by the appellant for delay in clearing the defects. Further appellant has explained the delay in paragraph 10, 11 & 12 of the application which caused in re-filing of the appeal. We find sufficient cause impugned in the above paragraph for sufficiently explaining the delay of re-filing of the appeal. Delay condoned.

This appeal has been filed against an order dated 26.09.2025 by which order Adjudicating Authority has rejected application under Section 94 filed by the appellant. The order dated 26.09.2025 reads as follows:

“Clarification was sought vide order dated 02.09.2025, in response to which the petitioner has filed the affidavit. Perusal of which shows that there is no guarantee invocation letter.

A personal guarantor becomes a debtor and is entitled to file application under section 94 of the IBC only after he commits default upon invocation of the personal guarantee. As there is no invocation of personal guarantee, the petition lacks merit and the ingredients of section 94 are not fulfilled. Hence, C.P. is dismissed.”

2. Ld. Counsel for the appellant submits that there have been several letters invoking the personal guarantee which were also part of the record of the Adjudicating Authority and has been filed along with the application in the list of documents.

3. We have noticed that Adjudicating Authority has directed on 02.09.2025 to file an affidavit explaining the guarantee invocation. Ld. Counsel for the appellant has referred to the affidavit which was filed in pursuance of the order of the court as Annexure AT-32 at page 805 of the appeal paper book. The affidavit does not indicate guarantee invocation letter and further we have also looked into the application under Section 94 where date of default was mentioned by the appellant as January, 2019.

4. In the fact of the present case when the appellant’s case is that there have been several guarantee invocation notice which could not be properly explained before