J U D G M E N T

(Hybrid Mode)

[Per: Justice Mohd. Faiz Alam Khan, Member (Judicial)]

1.The instant appeal has been preferred by Mohit Arora –Appellant Guarantor against the impugned order dated 11.10.2022, passed by the Ld. National Company Law Tribunal, New Delhi, Bench Court-II (Adjudicating Authority) in IA No. 4750/ND/2021 in CP No. (IB) 395(ND)/2021 whereby the Ld. Adjudicating Authority has admitted the petition filed by the Respondent No. 1 under Section 95 of the Insolvency and Bankruptcy Code, 2016 (Code).

Factual Matrix

2. Facts of this appeal in brief are that Respondent-PNB Housing Finance Ltd. has sanctioned loan facilities totalling Rs. 275 Crores vide sanction letter dated 04.01.2017 in favour of Supertech Ltd. (Corporate Debtor) and the terms and condition of the sanction letter was stated to be modified vide sanction letter dated 08.03.2017 and the loan agreement was executed on 10.03.2017 between the CD along with its co-borrowers namely Sarv Realtors Pvt. Ltd. and ASP Sarin Realty Pvt. Ltd. and Mr. Mohit Arora along with Mr. RK Arora and Ms. Sangita Arora who had provided their personal guarantees in favour of the creditor to secure these credit facilities availed by the CD.

3. It is further reflected that the CD has defaulted in payment of the monthly instalment due and payable to the creditor on various dates and the creditor served a demand notice under Section 13 (2) of the SARFAESI Act, 2002 on the CD and the personal guarantors demanding repayment of complete outstanding amount of Rs. 279.20 Crore along with future interest.

4. The creditor has also issued demand notice dated 09.07.2021, in requisite Form-B as required under Rule 7 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 (PG to CD Rules, 2019), demanding the total outstanding debt of Rs. 358.91 Crore and it is stated that no reply to this notice was given by the guarantor and consequently petition under Section 95 of the Code was presented before the Ld. Adjudicating Authority who after appointment of the RP and after considering its report as well as after hearing the submission of Ld. Counsel for the parties admitted the application by passing impugned order which has been assailed by the appellant by filing the instant appeal.

Submissions of parties

5. Ld. Counsel for the appellant submits that the Ld. Adjudicating Authority has committed an legality in admitting the petition filed by the financial creditor on the ground that the petition filed by the PNB under Section 95 of the IBC was filed during the commencement of the interim moratorium initiated on the filing of a petition under Section 95 IBC by the another creditor IFCI being CP (IB) No. 428(ND)/2021 on 02.06.2021 while the petition by the PNB (Respondent No. 1) was filed on 24.07.2021 therefore the petition filed by the PNBHFL resulting in the impugned order was a non-est and the impugned order passed thereon is also a nullity.

6. It is further submitted that the entire controversy in the present matter arises on account of the fact that the PNBHFL petition while file subsequently was numbered prior to the IFCI Petition and was also listed prior to the IFCI petition.

7. The PNB petition was listed on 03.08.2021, for the first time and on the same day the order was reserved and the IFCI petition was first listed on 12.08.2021 before a different Bench of Ld. Adjudicating Authority and thereafter vide order dated 27.08.2021, Ld. Adjudicating authority permitted the appellant to file the preliminary objection with regard to the maintainability of the IFCI petition.

8. It is further submitted that on 29.09.2021, the Resolution Professional was appointed and the said order was challenged by the appellant before this Appellate Tribunal by filing CA (AT) (Ins) No. 851 of 2021 and during the pendency of this appeal both the petitions i.e. the PNB petition and IFCI Petition were proceedi