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Judgment
(Hybrid Mode)
Heard Ld. Counsel for the Appellant and the Bank.
This appeal has been filed against the order dated 03.10.2024 passed by the NCLT, Kolkata Bench -II by which the AA has admitted Section 95 application filed by the Indian Bank, Respondent herein.
Ld. Counsel for the Appellant challenging the order submits that the AA has relied demand notice in Form B dated 01.06.2022 as a notice for invocation of guarantee which cannot be held to be a notice invoking guarantee as laid down by this Tribunal in State Bank of India Vs. Deepak Kr. Singhnia. It is submitted that the Bank has not placed reliance on any other notice invoking the guarantee, hence, the application is not maintainable.
Ld. Counsel for the Bank submits that the Bank has sufficient material to satisfy that guarantee was invoked of the personal guarantor and the Bank may be given an opportunity to file an additional affidavit before the AA brining the material to show that guarantee was invoked.
We have heard Ld. Counsel for the parties and perused the records.
The order of the AA admitting Section 95 application is based on Form B notice dated 01.06.2022 and on the said basis and the report submitted by RP application has been admitted. It has been held by this Tribunal in State Bank of India (Supra) that invocation of guarantee has to be prior to issuance of Form B notice. We are thus of the view that the order of the AA admitting Section 95 application cannot be sustained only on the basis of Form B notice, however, the end of justice be served, if, we revive the application of the Financial Creditor before the AA for passing a fresh order by giving opportunity to the Bank to file an additional affidavit. The Bank is permitted to file an additional affidavit before the AA within three weeks from today. Reply to the Additional Affidavit be filed by the Appellant within three weeks thereafter. Both the parties are liberty to make an application before the AA after six weeks for fixing a date in the matter. The impugned order is set aside. The appeal is disposed of.