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2025 Supreme(Online)(NCLT) 409
NATIONAL COMPANY LAW TRIBUNAL
Harnam Singh Thakur, Umesh Kumar Shukla, JJ
NISHA KALSI VS
C.P. (IB) - 125/2024
For the Petitioner:Vishav Bharti Gupta
The Tribunal emphasized that insolvency applications must be complete and filed in good faith, dismissing those intended to obstruct creditor recovery.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Sections 94, 96, 99, and 100 - Personal Guarantors Insolvency Rules, 2019 - Application for Personal Insolvency Resolution Process - The Applicant, a Personal Guarantor, filed for insolvency after the Corporate Debtor was declared an NPA. The Financial Creditor objected, citing incomplete application and malicious intent to defraud creditors. The Tribunal found the application incomplete and lacking bona fide intent, dismissing it. (Paras 1, 3, 10, 12)
(B) Limitation Period - The Tribunal ruled that the application was filed within the limitation period as per the SARFAESI notice. (Paras 10)
(C) Intent of Application - The Tribunal concluded that the application was filed to thwart recovery proceedings, lacking genuine intent to settle debts. (Paras 11)
Facts of the case:
The Applicant guaranteed loans for a Corporate Debtor, which became an NPA. The Financial Creditor demanded payment, leading to the application for insolvency. The Applicant's financial situation was dire, with no income source. (Paras 3, 11)
Findings of Court:
The application was incomplete, lacking necessary documents, and was filed with the intent to delay creditor recovery. (Paras 12)
Issues: Whether the application was filed within the limitation period and whether it was made in good faith. (Paras 10, 11)
Ratio Decidendi: The Tribunal emphasized the need for complete documentation and bona fide intent in insolvency applications, dismissing those filed to obstruct creditor recovery. (Paras 11, 12)
Result: Application dismissed.
ORDER
The present Application has been filed by Nisha Kalsi (hereinafter referred to as the “Personal Guarantor”) under Section 94 and other applicable provisions of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as the “IBC” or “Code”) read with Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (hereinafter referred to as the “Personal Guarantors Insolvency Rules”) to initiate the Personal Insolvency Resolution Process (hereinafter referred as the "PIRP") against herself being the Personal Guarantor for the credit facilities extended to M/s. AGM Auto Private Limited namely, “Corporate Debtor” or “Principal Borrower”) by the Bank of Baroda (hereinafter referred as the “Financial Creditor”)
2. The registered office of the Corporate Debtor is in the State of Haryana and therefore, the present Application is within the territorial jurisdiction of this Bench. Further, the Corporate Debtor has been admitted into Corporate Insolvency Resolution Process (hereinafter referred as the "CIRP") by this Tribunal vide Order dated 28.10.2022 in Section 9 Petition bearing CP (IB) No. 209/Chd/Hry/2020 titled as “M/s Prompt Enterprises Private Limited vs. M/s AGM Auto Private Limited.”, and the present Application has been filed on 14.05.2024. Thus, the jurisdiction of this Tribunal vests over the matter by virtue of Section 60(1) and 60(2) of the Code.
FACTS OF THE CASE
3. The facts of the case, as stated in the Application, are as below:
(i) The Applicant provided guarantees to the Financial Creditor for credit facilities extended to the Corporate Debtor.
(ii) The Applicant got to sign and execute the necessary documents/ guarantees, as may be required and necessary for sanction and restructuring of the credit facilities.
(iii) The account of Corporate Debtor was declared as a Non-Performing Asset (hereinafter referred to as the "NPA") on 17.11.2022.
(iv) The Financial Creditor, issued a possession notice under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the “SARFAESI”) dated 29.09.2023 demanding an amount of Rs.3,85,57,139.90 (Rupees Three Crores Eighty Five Lacs Fifty Seven Thousand One Hundred Thirty Nine and Ninety Paisa only) to the Applicant.
(v) The outstanding dues of the Corporate Debtor against the Financial Creditor are Rs.4,76,18,242.84 as on 14.08.2024.
(vi) The amount of debt and default mentioned in the Part-III of the Application is as below:
(vii) The Applicant has annexed with the Application the following documents to prove the existence of debt and amount of default:
4. The Applicant in her Application has proposed Mr. Deepak Thukral having Registration No. IBBI/IPA-002/IPA-002/ IP-N00182/2017-18/10453, Phone No. 9417496655, Email: deepakthukral1@gmail.com as Resolution Professional (hereinafter referred to as the “RP”) in the matter, who has submitted his written consent and certified that no disciplinary proceedings are pending against him with the Board or IIIP of ICAI in Part IV of the Application. Further, it was also stated by him during the course of hearing that no disciplinary proceedings are pending against him and the same has been recorded vide this Tribunal Order dated 21.05.2024. The AFA has been filed vide as Annexure-7 of the Application, wherein the AFA Certification is valid up to 21.08.2024. Therefore, this Adjudicating Authority, vide Order dated 21.05.2024, appointed Mr. Deepak Thukral, as RP under section 97 of the Code with the direction to comply with the provisions of Section 99 of the IBC and to file his report within ten days and supply copy of the report to the Creditor(s) as well as to the Personal Guarantor.
RP REPORT
5. The RP filed IA No. 1600/2024 to place on record the RP Report under section 99 of the Code, which, vide this Tribunal Order dated 29.07.2024 was taken on record and
