IN THE NATIONAL COMPANY LAW TRIBUNAL

AHMEDABAD

DIVISION BENCH

COURT - 1

ITEM No. 301

C.P.(IB)/204(AHM)2021

Order under Section 94 IBC, 2016

In The Matter Of:

Savitaben Gordhanbhai Thumar ........Applicant

(Personal Gaurantor)

V/s ........Respondent

Premraj Ramratan Laddha

Liquidatorof Corporate Debtor

Order delivered on: 08/03/2024

Coram:

Mr. Shammi Khan, Hon’ble Member(J) Mr. Sameer Kakar, Hon’ble Member(T)

PRESENT:

For the Applicant : For the Respondent :

ORDER

The case is fixed for the pronouncement of the order. The order is pronounced

in the open court, vide separate sheet.

-SD- -SD-

SAMEER KAKAR SHAMMI KHAN

MEMBER (TECHNICAL) MEMBER (JUDICIAL)

BEFORE THE ADJUDICATING AUTHORITY NATIONAL COMPANY LAW TRIBUNAL, DIVISION BENCH – I, AHMEDABAD Filed under Section 94 of the Insolvency & Bankruptcy Code, 2016 Mrs. Savitaben Gordhanbhai Thumar In the matter of Mrs. Savitaben Gordhanbhai Thumar Address: 4^th Floor, Subham Apartment, 4-Narmada Park Corner, Vidyakunj Society Main Road, Rajkot, Gujarat-360005.

… Applicant VERSUS

1. Premraj Ramratan Laddha, RP/Liquidator of Corporate Debtor

304, Abhijit-3, Above Pantaloon, Mithakhali-Law Garden road, Ellisbridge, Ahmadabad. 2. State Bank of India Stressed Assets Management Branch, Paramsiddhi Complex, 2nd Floor, Opp. V.S. Hospital, Ellisbridge, Ahmadabad.

…Respondent Order pronounced on : 08.03.2024 CORAM:

Mr. SHAMMI KHAN, MEMBER (JUDICIAL)

Mr. SAMEER KAKAR, MEMBER (TECHNICAL)

APPEARANCE:

For the Applicant/PG : Mr. Rajesh Bohra, Advocate For the Respondent/SBI : Ms. Noopur Dalal, Advocate

O R D E R

1. This application has been filed under Section 94(1) of the Insolvency and Bankruptcy Code, 2016 by the Applicant/Personal Guarantor to initiate proceeding in terms of in terms of Rule 6 of the IB (AAA for IRP for PGCD) Rules, 2019.

2. It is stated that the Corporate Debtor namely, Micro Forge (India) Ltd. was dissolved vide order dated 12.02.2020 passed in I.A. No.375 of 2019 in CP (IB)

No.22/10/NCLT/AHM/2017.

3. The present application is filed by Mrs. Savitaben Gordhanbhai Thumar who is stated to be a guarantor to the Corporate Debtor- Micro Forge (India) Ltd. On perusal of the application it is observed that, the Deed of Guarantee is not annexed to the present application.

4. However, the Applicant has filed copy of the Notice which refers to Demand Notice dated 27.11.2009 issued by the Respondent/State Bank of India U/s 13(2) of SARFAESI Act, 2002 and Possession Notice dated 04.12.2010 issued U/s 13(4) of SARFAESI Act, 2002 read with Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 which are annexed as Annexure-4 with the application.

5. On perusal of these notices issued by the Respondent/State Bank of India, it is observed that said notices are issued only for the purpose of enforcing security interest created by Corporate Debtor and not to invoke any Personal Guarantee.

6. The learned Counsel for the Applicant may be right in his submission that by virtue of Demand Notice dated 27.11.2009 as well as and Possession Notice dated 04.12.2010 issued U/s 13(2) & 13(4) of the SARFAESI Act, 2002, the Applicant was also asked to make the payment of dues. But there is neither anything on record to show that any other notice has been issued by Respondent Bank to the Applicant in the capacity of Personal Guarantor to invoke the Personal Guarantee nor any steps have been taken by the Respondent Bank to recover the dues from the Applicant by sale of her personal assets.

7. The Hon’ble NCLAT in its decision in the matter of Amanjyot Singh Vs. Navneet Kumar Jain & Ors (Company Appeal (AT) (Insolvency) No. 961 of 2022) has upheld the view taken by NCLT, Delhi dismissing an application filed by the Appellant under section 94. The relevant para of the said order is reproduced below:-

“7. Notice under Section 13, sub-section (2) is issued by the Bank for enforcing the security interest. Section 13, sub-section (1) and (2) of the SARFAESI Act is as follows:-

"

13. Enforcement of security interest.--(1) Notwithstanding anything cont