National Company Law Appellate Tribunal, Delhi: In an appeals filed by the IDBI Bank, challenging the two identical orders passed on 5-5-2025 by the National Company Law Tribunal (‘NCLT’), Indore Special Bench, Court — I, whereby IDBI’s Section 95 application under Insolvency and Bankruptcy Code, 2016 (‘IBC’) against the personal guarantor (‘respondent’) was rejected, the Bench of Ashok Bhushan J. and Barun Mitra Member (Technical), upheld the decision of adjudicating authority that the Section 95 application filed by IDBI Bank was filed after expiry of three years period of limitation. Thus, the Tribunal found no merit in the appeals and accordingly, dismissed them.
Background
IDBI Bank extended credit facilities to the corporate debtor — Great Logistic and Parking Services Pvt. Ltd, with the respondent standing as personal guarantor and executed a personal guarantee in favour of the creditor. The corporate debtor defaulted in repayment of the cash credit facilities, leading to the classification of the account as Non-Performing Asset (‘NPA’). The creditor issued a guarantee invocation notice to the personal guarantor, filed an Original Application before the Debt Recovery Tribunal (‘DRT’) and a recovery certificate was issued in favour of the creditor on 25-1-2019. After issuing demand notice under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtors) Rules, 2019 (‘2019 Rules’), the application under Section 95 IBC was filed by the IDBI Bank on 2-9-2024.
The adjudicating authority by the impugned order, rejected the application as barred by time. It was held that from recovery certificate dated 25-1-2019, 3 years would expire on 25-1-2022, and even giving benefit of order of the Supreme Court in Cognizance for Extension of Limitation, In re, Suo Moto WP (Civil) No. 3 of 2022, (‘Cognizance for Extension of Limitation case’) the limitation period would extend only till 11-1-2024, and the application having been filed on 2-9-2024 was beyond limitation period. Adjudicating authority by the impugned order rejected the applications as barred by time, aggrieved by which orders, IDBI Bank filed the present appeals.
The appellant submitted that that in view of the judgment of the Supreme Court in Tottempudi Salalith v. State Bank of India, (2024) 1 SCC 24 where it was held that decree passed by Court shall remain valid for a period of 12 years and during which claim can be filed in the IBC, the limitation for filing Section 95 application in the present case has to be treated as 12 years and hence the application filed was not barred by time.
Case Analysis and Decision
The Tribunal relying on Kotak Mahindra Bank Ltd. v. A. Balakrishnan, (2022) 9 SCC 186, held that the limitation for filing application under Section 7 was only three years under Article 137 of the Limitation Act, 1963 (‘Limitation Act’). The tribunal noted that the appellant’s reliance on Tottempudi Salalith to claim a 12-year limitation was wholly incorrect and not borne out from the judgment.
The Tribunal also referred to Gaurav Hargovindbhai Dave v. Asset Reconstruction Ltd, (2019) 10 SCC 572, where Supreme Court clearly laid down that limitation for Section 7 application was only three years as per Article 137 of Limitation Act. The Tribunal not finding any substance in the submission of the appellant that for filing an application under IBC 12 years limitation would apply, and accordingly, upheld the adjudicating authority’s order that the Section 95 application filed by IDBI Bank was filed after expiry of three years period of limitation, even after accounting for the benefit under Cognizance for Extension of Limitation case (‘supra’). The Tribunal, thus finding no merit in the appeals, dismissed them.
[IDBI Bank v. Hemangi Patel, 2025 SCC OnLine NCLAT 1263, decided on 8-8-2025]
Advocates who appeared in this case:
For the Appellant: Vaibhav Gaggar and Shreedhar Gaggar, Advocates.
