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Judgment
Ashok Bhushan, J.
These two appeals arise out of the same order dated 04.07.2025 passed by the Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Court – I in CP (IB) No. 178/Chd/Hry/2021 and in I.A. No. 2026/2024 and I.A. No. 2027/2024. By the impugned order the Adjudicating Authority has rejected Section 95 application filed by the Siemens Financial Services Private Limited – Appellant in Company Appeal (AT) (Ins.) No.1141 of 2025. I.A. No.2027/2024 filed by Ravi Kumar Jain – Personal Guarantor has also been dismissed. Company Appeal (AT) (Ins.) No.1082 of 2025 has been filed by the Personal Guarantor challenging the order in I.A. No.2027/2024 and challenging certain observations and finding in the impugned order dated 04.07.2025.
Brief facts of the case necessary to be noticed for deciding these appeals are:
Siemens Financial Services Private Limited entered into a Master Lease Agreement with RCC Infraventures Ltd. for leasing out certain equipment for a fixed term. Master Lease Agreement was executed on 28.05.2019 with a lease rental, form of guarantee dated 28.05.2019. The Guarantor has also issued an irrevocable and unconditional demand promissory note dated 28.05.2019. The Personal Guarantee was given by Ravi Kumar Jain, the Personal Guarantor.
On 24.12.2019, the Lessee claim to have issued a Surrender Letter.
The Lessor, Siemens Financial Services Private Limited issued a legal noticed dated 07.12.2020 for termination of lease facility and invocation of arbitration under Master Lease Agreement dated 28.05.2019 demanding an amount of Rs.9,97,31,150/- both from Lessee, RCC Infraventures Ltd. as well as Ravi Kumar Jain, the Personal Guarantor.
Siemens Financial Services Private Limited issued a demand notice dated 14.12.2020 under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 demanding total amount of Rs.9,97,31,150/-.
On no payment having been received from the Lessee or the Personal Guarantor, CP (IB) No. 178/Chd/Hry/2021 was filed by Siemens Financial Services Private Limited on 24.03.2021. The Adjudicating Authority appointed a Resolution Professional by order dated 03.01.2024 asking him to submit a report under Section 99. On notices having been issued to the Personal Guarantor, an objection was filed by the Personal Guarantor in terms of Section 99(2) of the I&B Code dated 20.01.2024. The Resolution Professional submitted a report dated 25.01.2024 under Section 99 of the I&B Code recommending for admission of Section 95 application filed by Siemens Financial Services Private Limited. The Personal Guarantor – Ravi Kumar Jain also filed objection to the above report.
Prior to filing of Section 95 application and subsequent to filing of Section 95 application there has been certain proceedings against the Corporate Debtor – RCC Infraventures Ltd. and the Personal Guarantor – Ravi Kumar Jain, which also need to be noticed.
Ravi Kumar Jain and his wife Neeru Jain has availed a home loan facility of Rs.4.99 Crores dated 23.09.2013 from Union Bank of India and a first charge was created on the property Villa Apartment No. TPV – G– GV – GV02, The Palm Springs situated at Gurgaon (Haryana).
The Corporate Debtor - RCC Infraventures Ltd. took a corporate loan from Consortium of five banks including Union Bank of India. Second charge was also created over the above assets with respect to the corporate loan.
The account of the Corporate Debtor was declared NPA on 29.02.2020. Notice under Section 13(2) of the SARFAESI Act, 2002 dated 28.08.2020 was issued by the Union Bank of India in respect to the corporate loan. Notice under Section 13(4) dated 05.01.2021 was issued and symbolic possession was taken by the Union Bank of India of the assets on which second charge was created. It was, thereafter, on 24.03.2021 Section 95 application being CP (IB) No. 178/Chd/Hry/2021 was filed by Siemens Financial Services Private Limited against Ravi Kumar Jain, Personal Guarantor.
Home loan account of Ravi Kumar Jain was also declared as NPA. The Union Bank of India has issued notice for auction of the property under second charge on 29.04.2022. Auction was held of the property on 29.04.2022 in which auction the Villa Apartment No. TPV–G–GV–GV02, The Palm Springs situated at Gurgaon was auctioned in favour of Smt. Sangita Narula, Respondent No.2 in Company Appeal (AT) (Ins.) No.1082 of 2025. A sale certificate was issued in favour of Smt. Sangita Narula on 28.06.2022 of the above Villa.
A Securitization Application being S.A. No.462 of 2021 was filed by RCC Infraventures Ltd. and Guarantor – Ravi Kumar Jain before the DRT, Lucknow, which was dismissed on 17.06.2022.
A Writ Petition being Writ Petition No.20317 of 2022 was also filed by RCC Infraventures Ltd. and Guarantor – Ravi Kumar Jain before the High Court at Allahabad against order dated 17.06.2022.
An application under Section 14 was filed by Union Bank of India to take possession of the assets, which application was allowed on 10.08.2022.
S.A. No.649 of 2022 was filed by Ravi Kumar Jain and S.A. No.650 of 2022 was filed by Neeru Jain before the DRT, Allahabad, in which on 29.05.2024, the DRT observed that since Siemens Financial Services Private Limited had initiated personal insolvency proceeding before the NCLT, Chandigarh and the NCLT has passed order dated 03.01.2024 appointing the Resolution Professional against the property in question, the interim-moratorium has already started, hence, the Tribunal as well as the financial institution including bank has no power to proceed further in the matter. Against the order dated 29.05.2024, an appeal was filed by the Union Bank of India before the DRAT, which is said to be pending.
Smt. Sangita Narula, the Auction Purchaser filed I.A. No. 2026/2024 in CP (IB) No. 178/Chd/Hry/2021 seeking direction with respect to the Villa in question.
Ravi Kumar Jain, the Personal Guarantor also file I.A. No.2027/2024 in CP (IB) No. 178/Chd/Hry/2021 seeking direction for quashing the proceeding initiated under SARFAESI Act, 2002 qua the Villa in question.
On 26.09.2024, the Adjudicating Authority issued notice on both i.e. I.A. No. 2026/2024 and I.A. No.2027/2024 and permitted to file their replies. The Adjudicating Authority heard the CP (IB) No. 178/Chd/Hry/2021 as well as I.A. No. 2026/2024 and I.A. No.2027/2024 and by the impugned order dated 04.07.2025 rejected the Section 95 application CP (IB) No. 178/Chd/Hry/2021 as non-maintainable; dismissed I.A. No.2027/2024 and held that I.A. No. 2026/2024 is rendered infructuous. The operative portion of the order dated 04.07.2025 is in Para 25 of the order, which is as follows:
“25.Thus, in light of the foregoing discussion and the reasons recorded hereinbefore, it is hereby held that the petition bearing CP (IB) No.178/Chd/2021 is not maintainable and is dismissed and disposed of. Consequently, I.A. No.2027 of 2024 stands dismissed and I.A. No. 2026 of 2024 is rendered infructuous and are disposed of accordingly, without any order as to costs.”
Aggrieved by the above order these two appeals have been filed. Company Appeal (AT) (Ins.) No.1141 of 2025 has been filed by the Financial Creditor who has filed the Section 95 application. In Company Appeal (AT) (Ins.) No.1141 of 2025, the Appellant has prayed for following reliefs:
“a)The Impugned Order dated 04.07.2025 passed by the Hon'ble National Company Law Tribunal, Chandigarh Bench passed in CP (IB) No. 178/Chd/Hry/2021 be quashed and set aside.
b)That the Company petition (IB) No. 178/Chd/Hry/2021 filed under section of the Code be allowed and CIRP be initiated against the Respondent No.1.
c)Any such other relief as the Hon'ble National Company Law Appellate Tribunal may deem fit in the interest of justice be also awarded”
In Company Appeal (AT) (Ins.) No.1082 of 2025 filed by the Personal Guarantor, Ravi Kumar Jain following reliefs have been prayed for:
“A. Pass an order setting aside the Impugned Judgment dated 04.07.2025 passed by the Ld. National Company Law Tribunal, Chandigarh Bench in IA No. 2027 of 2024 in CP (IB) No. 178/CH/HRY/2021, as being arbitrary, perverse, and vitiated by jurisdictional overreach, suppression of material facts, misapplication of settled legal principles, and gross procedural irregularity.
B. Pass an order declaring that the observations and findings rendered by the Ld. Adjudicating Authority in the Impugned Judgment— particularly those concerning the applicability of the SARFAESI Act, 2002 and the Transfer of Property Act, 1882—are without jurisdiction, non-binding, and wholly ineffective, and shall not be treated as determinative or binding on any pending or future adjudication before the Hon’ble Debts Recovery Tribunal or Debts Recovery Appellate Tribunal, which shall decide such issues independently on their own merits, uninfluenced by the said observations;
C. Pass such further or other order(s), direction(s), or relief(s) as this Hon’ble Appellate Tribunal may deem just, fit, proper and necessary in the facts and circumstances of the present case and in the paramount interest of justice, equity, and good conscience so as to secure the ends of justice and prevent the abuse of process of law.”
We have heard Shri Asav Rajan, learned counsel for the Appellant in Company Appeal (AT) (Ins.) No.1141 of 2025 and Shri Arun Kathpalia, learned senior counsel for the Appellant in Company Appeal (AT) (Ins.) No.1082 of 2025. Shri Virender Ganda, learned senior counsel has appeared for the Auction Purchaser – Smt. Sangita Narula and Shri Abhijeet Sinha, learned senior counsel has also appeared for the Respondent No.1 in Company Appeal (AT) (Ins.) No.1141 of 2025.
Learned counsel appearing for Siemens Financial Services Private Limited challenging the order dated 04.07.2025 submits that the Adjudicating Authority committed error in rejecting the application under Section 95 as not maintainable on the ground that Financial Creditor has not invoked the guarantee prior to issuance of notice under Rule 7 of 2019 Rules, whereas the legal notice dated 07.12.2020 was notice demanding the total amount from the Corporate Debtor as well as the Personal Guarantor. The Adjudicating Authority without adverting to the said legal notice dated 07.12.2020 came to the incorrect conclusion that personal guarantee was never invoked. The Financial Creditor in its application under Section 95 has clearly pleaded legal notice dated 07.12.2020 as notice invoking the guarantee. The Adjudicating Authority also further committed error in observing that Section 95 application filed by the Financial Creditor was incomplete since the Financial Creditor has failed to attach Income Tax Returns of the Personal Guarantor. It is submitted that application filed by the Financial Creditor under Section 95 was clearly maintainable and all requisite requirements for complete application were there. The Resolution Professional has also recommended for admission of Section 95 application. The Adjudicating Authority committed error in holding the application as not maintainable. It is submitted that on the date application was filed by the Financial Creditor i.e. 24.03.2021 under Section 95 interim moratorium came into existence as per Section 96 of the I&B Code and none of the assets of the Personal Guarantor could have been dealt with by the Union Bank of India.
Shri Arun Kathpalia, learned senior counsel appearing for the Appellant in Company Appeal (AT) (Ins.) No.1082 of 2025 challenging the order submits that the Adjudicating Authority committed error by invalidating the interim moratorium retrospectively, which is not permissible. It is submitted that the interim moratorium come into play by virtue of Section 96 on the date of filing of the application which was on 24.03.2021. When the application under Section 95 was rejected by the impugned order, interim moratorium shall come to an end on the said date. The Adjudicating Authority had no jurisdiction to terminate the interim moratorium retrospectively. Interim moratorium is automatically triggered on filing of application under section 95 and is not conditional upon adjudication which interim moratorium ceased to have effect on the date of admission or rejection of the application under Section 95. The Adjudicating Authority’s observation in Para 23 of the impugned order that interim moratorium is retrospectively invalidated is not permissible and is liable to be set aside. It is submitted that the interim moratorium having been into existence w.e.f. 24.03.2021, no action could have been taken by the Union Bank of India with regard to the assets of the Personal Guarantor i.e. the Villa in question and all proceedings undertaken by the Union Bank of India including auction of the assets is non-est. Shri Kathpalia has further referred to and relied on the order dated 29.05.2024 passed by the DRT, Allahabad where in S.A. No.649 of 2022 DRT, Allahabad has taken the view that in view of the interim moratorium being into existence there is no authority in the bank to proceed any further, therefore, the Respondent Bank and the DRT ceases with power to proceed further in the SARFAESI action.
Shri Virender Ganda, learned senior counsel for the Auction Purchaser submits that the application which was filed by the Siemens Financial Services Private Limited being defective application moratorium shall not come into existence on the date of filing of the application i.e. 24.03.2021. It is submitted that the Adjudicating Authority has rightly rejected the application under Section 95 filed by Siemens Financial Services Private Limited holding it to be incomplete and non-maintainable. It is submitted that the Financial Creditor having not invoked the personal guarantee, application under Section 95 was not maintainable. Shri Ganda submits that the guarantee cannot be invoked by issuance of demand notice under Rule 7 of 2019 Rules whereas in the present case the Financial Creditor invoked guarantee by issued Rule 7 notice. There being no prior invocation of guarantee liability never crystallised, hence, Section 95 application is premature, defective and non-est. Non-invocation of guarantee cannot form basis for insolvency resolution and interim moratorium nor it could restrain SARFAESI enforcement. It is submitted that against the proceedings initiated by the Union Bank of India under SARFAESI Act, 2002, the Corporate Guarantor and the Corporate Debtor unsuccessful filed application before the DRT being S.A. No.462/2021, which was dismissed by the DRT on 17.06.2022, against which appeal was also dismissed by DRAT. A Writ Petition was also filed against the order dated 17.06.2022, in which no relief was granted. Another Writ Petition was filed in Allahabad High Court being Writ Petition No.28216 of 2022 where the High Court directed the Corporate Debtor to deposit at least amount of Rs.2 Crores to show its bonafide. The amount was not deposited whereas there was huge outstanding against the Corporate Debtor and the Personal Guarantor of more than Rs.170 Crores. Another Writ Petition No.10045 of 2023 was filed by RCC Infraventures Ltd. with two others (including Ravi Kumar Jain, Personal Guarantor) where the DRAT order dated 28.01.2023 was challenged, which petition was disposed of directing the Bank to consider higher offer with respect to all properties which are subject matter of recovery by the Bank. Issuance of sale certificate with regard to Villa Apartment was also noticed in the order. No higher offer was also ever given by the Corporate Debtor/Personal Guarantor. It is submitted that the Personal Guarantor is approaching different forums from time to time and has been unsuccessful before the DRT as well as the High Court. The order of the Adjudicating Authority rejecting Section 95 application does not warrant any interference. Shri Ganda further reiterated that the application itself was defective and premature, therefore, no moratorium shall come into effect so as to inhibit the SARFAESI action initiated by the Bank.
Shri Abhijeet Sinha, learned counsel appearing for the Respondent No.1 in Company Appeal (AT) (Insolvency) No. 1141 of 2025 has also adopted the submissions raised by Shri Arun Kathpalia and submits that moratorium come into operation under Section 96 on the date when application was filed by Siemens Financial Services Private Limited on 24.03.2021.
Learned counsel for the parties in support of their respective submissions has relied on the judgments of this Tribunal as well as Hon’ble Supreme Court, which shall be referred to while considering the submissions in detail.
Before we proceed further we need to notice the prayers made in application I.A. No.2026 of 2024 filed by Auction Purchaser and I.A. No.2027 of 2024 filed by Personal Guarantor. In I.A. No.2026 of 2024 filed by Auction Purchaser –Smt. Sangita Narula following prayers were made:
“i.Pass directions that the present proceedings has no effect qua the property being Villa No. TPV GV GV02 in the Palm Springs situated at Revenue Estate of Village Wazirabad, Sector 54, Golf Course Road, Gurugram, Haryana-122002 and further pass specific directions qua release of the said property as the same being already sold by the Bank before appointment of RP in the present proceedings;
ii.Pass any other order that this Hon'ble Tribunal may deem fit in the facts and circumstances of this case.”
In I.A. No.2027 of 2024 following prayers were made by Ravi Kumar Jain, Personal Guarantor:
“1.Pass appropriate directions quashing/ setting aside the steps / proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 qua the sole residential premises I personal asset of the Applicant/Personal Guarantor, being property bearing Villa Apartment No. TPV - G - GV - GV02, The Palm Springs, situated in the Revenue Estate of Village Wazirabad, Tehsil & District - Gurgaon (Haryana), during the subsistence of interim-moratorium under Section 96 of Insolvency and Bankruptcy Code, 2016;
2.Pass appropriate directions whereby the operation of steps / proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 qua the sole residential premises I personal asset of the Applicant/Personal Guarantor, being property bearing Villa Apartment No. TPV - G - GV - GV02, The Palm Springs, situated in the Revenue Estate of Village Wazirabad, Tehsil & District - Gurgaon (Haryana), during the subsistence of interim-moratorium under Section 96 of Insolvency and Bankruptcy Code, 2016, may kindly be put in abeyance during the pendency of present Application;
3.Pass any other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.”
We need to first consider the arguments raised on behalf of Siemens Financial Services Private Limited challenging the order dated 04.07.2025 rejecting the application under Section 95 as non-maintainable. The Adjudicating Authority in the impugned order after noticing the submissions of the parties in the matter including both the application I.A. No.2026 of 2024 and I.A. No.2027 of 2024 has framed three questions for consideration, which are noticed in Para 19 of the impugned order. Para 10 of the impugned order is as follows:
“19.The following issues arise for determination:
i.Whether SFSPL has invoked the guarantee of the Personal guarantor before filing the Section 95 petition?
ii.Whether the petition filed under Section 95 of IBC is complete and maintainable ?
iii.Whether the auction of the alleged property is null and void in terms of Section 96 of IBC?
The above-mentioned issues are discussed in detail in the following paragraphs.”
The first question framed by the Adjudicating Authority was as to whether SFSPL has invoked the guarantee of the Personal guarantor before filing the Section 95 petition. The discussion in Question No.1 is contained in Para 10. While discussing the above Question No.1 in Para NO.20, the Adjudicating Authority made following observations:
“20.The first issue is Whether the Demand Notice issued under Rule 7(1) of the 2019 Rules can be considered as Notice for invocation of guarantee for the purposes of filing Section 95 Application by a Creditor? ….”
It is notable that although Question No.1 as framed in Para 19 was “Whether SFSPL has invoked the guarantee of the Personal guarantor before filing the Section 95 petition?” but the Adjudicating Authority started discussing under Question No.1 a different question i.e. “Whether the Demand Notice issued under Rule 7(1) of the 2019 Rules can be considered as Notice for invocation of guarantee for the purposes of filing Section 95 Application by a Creditor?”. We need to first notice Section 95 application which was filed by the Financial Creditor in Form C as per Rule 7(2) of the 2019 Rules. The copy of the application is filed as Annexure A-1 to the Appeal. In the application under Section 95, the Financial Creditor has pleaded legal notice dated 07.12.2020 as well as notice under Rule 7 in Form B i.e. notice dated 14.12.2020 (wrongly mentioned as 11.12.2020 in the application). In Part III of the application Column No.15 is as follows:
15.List of documents 1. Copy of the Legal attached to this Notice dated 07.12.2020 application in order to for termination of the prove the existence of lease facility and debt and the amount in invocation of Arbitration default under the Master Lease Agreement dated 28.05.2019 (Annexure: "A11")
2.Copy of Demand Notice dated 11.12.2020 under rule of 7(1) Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Process of Resolution Personal Guarantors to Corporate Debtors) Rules, 2019 alongwith postal receipts and track consignment (Annexure: "12")
The Resolution Professional was appointed by the Adjudicating Authority who submitted a report under Section 99 of the I&B Code. In the report it was submitted by the Resolution Professional that he has noticed both the legal notice dated 07.12.2020 and demand notice dated 14.12.2020 in Para 4 (d) and (e), which is as follows:
“d)A legal notice for termination of lease facility was issued on 07.12.2020 for terminating the lease facility due to failure on the part of the Corporate Debtor to make payment of the lease rentals in accordance with documents executed as above.
e)Thereafter, a demand notice was issued by the creditor to the personal guarantor on 14.12.2020 in respect of unpaid debt in default of Rs. 8,94,58,478 related to the Corporate Debtor.”
The Personal Guarantor has also filed his objections dated 20.01.2024 which was also dealt with by the Resolution Professional in its report. In the objection which was filed by the Personal Guarantor, the Personal Guarantor admitted issuance of legal notice dated 07.12.2020. The Personal Guarantor also filed his objection to the Report. The reason given by the Adjudicating Authority in the impugned order holding that Financial Creditor has not invoked the personal guarantee is that demand notice under Rule 7(1) cannot be said to be notice invoking personal guarantee. The Adjudicating Authority has noticed Clause 2, 3 and 23 of the guarantee. In Para 20(i) and (ii), the Adjudicating Authority made following observations:
“20.The first issue is Whether the Demand Notice issued under Rule 7(1) of the 2019 Rules can be considered as Notice for Invocation of guarantee for the purposes of filing Section 95 Application by a Creditor?
i.The liability of a Personal Guarantor is determined from the Deed of Guarantee. Clause 2. Clause 3 and Clause 23 of the Guarantee arising out of the Master Lease Agreement dated 28.05.2019 executed by the Personal Guarantor with SFSPL, reads as follows:
“2.In event of the Lessee for any reason omitting, failing or defaulting in making the payment of the Lessee's Dues or any part thereof, the Guarantor irrevocably agrees and undertakes that on demand by the Lessor for its assigns), the Guarantor shall without any demur pay to the Lessor for its assigns) the Lessee's Dues in full up to the date of payment.
3.Any such demand made by the Lessor (or its assigns) on the Guarantor may be made by sending a written communication to the Guarantor at its address given under its signature hereunder and shall be conclusive as regards the correctness of the amount mentioned therein, as having become due and payable by the Lessee having been committed by the Lessee in payment of the amount to to the Lessor for its assigns), and also conclusive as regards default the Lessor for its assigns). The Guarantor agrees that it will not require and shall not be entitled to require any further proof of these facts from the Lessor (or its assigns).
23.Any notice, communication or other correspondence addressed by the Lessor (or its assigns) to the Guarantor may be addressed to the address given herein or to such other address as the Lessor (or its assigns) may be aware. Such notice, communication Correspondence may be served by ordinary post or hand delivery or otherwise and in case of post shall be deemed to have been served on the Guarantor at the time it would have been delivered in the normal course. In the event of any change in address, the Guarantor shall forthwith intimate the same to the Lessor (or its assigns) failing which service of a notice or correspondence to the address last given shall be deemed to be service on the Guarantor.
ii.The above-mentioned clauses clearly show that in order to invoke the Guarantee of the Personal Guarantor, SFSPL had to send a written communication. ….”
The Adjudicating Authority has relied on judgment of this Tribunal in “State Bank of India vs. Deepak Kumar Singhania, Company Appeal (AT) (Ins.) No.191 of 2025” where this Tribunal held that the demand notice issued under Rule 7 demanding repayment of default amount cannot be treated as notice invoking guarantee. In the case of Deepak Kumar Singhania only notice which was relied for invoking guarantee was demand notice issued under Rule 7. This Tribunal in the above judgment held that default on the part of the Guarantor should exist on the date when notice in Form-B has been issued and this notice under Rule 7 cannot be notice for invoking guarantee. In Para 17 of the judgment this Tribunal observed:
“17.……In the present case, there is no case setup by the Appellant that at any point of time guarantee was invoked, except issuance of Notice in Form-B, which is claimed by the Appellant to be treated as Notice for invocation of guarantee.”
In the case of State Bank of India vs. Deepak Kumar Singhania, there was case of the Financial Creditor that notice issued under Form B (Rule 7) should be treated as notice invoking the guarantee. In the present case, admittedly, there is legal notice issued by the Financial Creditor prior to issuance of demand notice under Rule 7. The legal notice is dated 07.12.2020 whereas demand notice is dated 14.12.2020. The legal notice dated 07.12.2020 as well as demand notice dated 14.12.2020 were both part of the Section 95 application. The Adjudicating Authority in the impugned order while considering Question No.1 has not adverted to the legal notice dated 07.12.2020 where in Para 6 noticing the arguments of Personal Guarantor the legal notice dated 07.12.2020 was noticed. In the submissions of Siemens Financial Services Private Limited noticed in Para 16, the notice dated 07.12.2020 was noticed by the Adjudicating Authority. It is relevant to notice Para 16 (ii) of the impugned order, which is as follows:
“ii.Personal Guarantor had entered into a Master Lease Agreement with SFSPL on 21.05.2019, along with other related documents. Due to financial indiscipline, a legal notice was issued on 07.12.2020, to the Guarantor/Corporate Debtor, terminating the lease facility and invoking arbitration. A demand notice under the Insolvency and Bankruptcy Rules, 2019, was subsequently issued on 11.12.2020.”
Learned counsel for the Appellant before us has contended that legal notice dated 07.12.2020 has to be treated as notice invoking the personal guarantee, hence, the personal guarantee was invoked prior to issuance of demand notice on 14.12.2020. Thus, the very basis of the order of the Adjudicating Authority that personal guarantee was invoked only by demand notice dated 14.12.2020 is incorrect. Learned counsel appearing for the Personal Guarantor has submitted that notice dated 07.12.2020 was only notice for invoking arbitration clause and was not notice invoking personal guarantee. We need to notice the contents of the legal notice dated 07.12.2020, which is part of the record to find out as to whether the said notice could be treated as only notice for invoking arbitration or said noticed could be said to be notice invoking personal guarantee.
The personal guarantee which was signed by the Personal Guarantor – Ravi Kumar Jain need to be noticed to find as to in what manner the Guarantee Deed contemplates invocation. The Adjudicating Authority in Para 20 (i) has quoted Clause 2 and Clause 23 of the guarantee. Clause 2 of the guarantee deed mentions “the Guarantor irrevocably agrees and undertakes that on demand by the Lessor for its assigns), the Guarantor shall without any demur pay to the Lessor for its assigns) the Lessee's Dues in full up to the date of payment”. Clause 3 provides that “Any such demand made by the Lessor (or its assigns) on the Guarantor may be made by sending a written communication to the Guarantor at its address given under its signature hereunder and shall be conclusive as regards the correctness of the amount mentioned therein,..”. Thus, the Guarantee Deed contemplates issuance of demand by written communication by the Lessor to the Guarantor. Now we come back to the legal notice dated 07.12.2020 to find out as to whether the said legal notice can be said to be written communication invoking guarantee, as per the Deed of Guarantee. The notice clearly mentions about the Master Lease Agreement dated 28.05.2019. The notice is addressed to RCC Infraventures Ltd. at Sr. No. 1 and Ravi Kumar Jain at Sr. No.2. The guarantee dated 28.05.2019 was also mentioned and it was mentioned in the notice that the Corporate Debtor has committed default in repayment of the lease rentals. With reference to Noticee No.2, Ravi Kumar Jain, it was mentioned that he undertook repayment of all amounts. It is useful to notice Para 12 and 13 of the legal notice, which is as follows:
“12.That as stated herein above You No.2 by way of your personal guarantee have guaranteed due repayment of all the amounts due and payable by You No.1 under the facility availed from SFSPL after entering into the Master Lease Agreement dated 28.05.2019 and also lease schedule dated 28.05.2019.
13.In the circumstances aforesaid, SFSPL herewith re-calls from You Nos.1 and 2, an outstanding amount aggregating to Rs.9,97,31,150/- (Rupees Nine Crore Ninety Seven Lakh Thirty One Thousand One Hundred and Fifty Only) due as on 22.10.2020 and payable to SFSPL under the said Agreement along with penal interest @7% per annum from 23.10.2020 till payment and/or realization thereof within thirty (30) days from the date of receipt of this notice along with an additional default interest @3% per month from. the date of default till payment and/or realization thereof failing which SFSPL shall be constrained to take such measures without prejudice SFSPL's other rights and remedies under the said Agreement or otherwise in law, to which SFSPL may be entitled to against You for recovery thereof, and You shall be liable for all the costs and consequences.”
The statement in Para 13 clearly indicate that the said notice was written communication intimating about the outstanding amount of Rs.9,97,31,150/- and demanding the payment. Para 14 of the notice also relevant which provides as follows:
“14.In the event, You Nos. 1 and 2 fails to comply with your payment obligations within thirty (30) days from the date of receipt of this notice, it shall be presumed that disputes, differences, claims, etc, have arisen between You and SFSPL and this notice may be treated as notice under Clause 30 of the Master Lease Agreement dated 28.05.2019 and Clause 24 & 25 of the Form of Guarantee arising out of Master Lease Agreement dated 28.05.2019 invoking the Arbitration clause.”
Para 14 of the notice refer to Clause 30 of the Master Lease Agreement and Clause 24 and 25 of the Guarantee Deed, which also need to be noticed. Clause 30 of the Master Lease Agreement provides as follows:
“30. ARBITRATION
All disputes, differences and/or claim arising out of or in connection with this Agreement and Lease Schedule or the performance of this Agreement shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, or any statutory amendments thereof and shall be referred to the sole Arbitrator nominated/appointed the Lessor. The place of arbitration shall be Mumbai and the award given by such an Arbitrator shall be final and binding on the parties to this Agreement.”
Clause 24 and 25 of the Guarantee is as follows:
“24.The Guarantor agrees that the Lessor (or its assigns) may at the Guarantor's risk and cost engage a collection agency to collect the dues and liabilities hereunder and may furnish to the collection agency such information, facts and figures as the Lessor (or its assigns) thinks fit. The Guarantor hereby agrees that any legal action or proceedings arising out of this Guarantee shall be brought in the courts or tribunals at Mumbai in India and irrevocably submit themselves to the jurisdiction of such courts or tribunals.
25.The Lessor (or its assigns) may, however, in their absolute discretion comunence any legal action or proceedings arising out of this Guarantee in any other court, tribunal or other appropriate forum, and the Guarantor hereby consents to that jurisdiction.”
The Notice dated 07.12.2020 was thus clearly communication in writing of the outstanding amount and by Clause 13 both Corporate Debtor and Personal Guarantor were communicated that the amount of Rs.9,97,31,150/- is recalled, which is payable to Siemens Financial Services Private Limited. The Adjudicating Authority having not even adverted to that notice dated 07.12.2020 and come to the conclusion that demand notice under Rule 7 cannot be treated to be notice invoking guarantee and has held the application to be non-maintainable.
Learned counsel for Siemens has relied on judgment of this Tribunal in “Asha Basantilal Surana vs. State Bank of India & Ors., 2025 SCC OnLine NCLAT 920” where this Tribunal in Para 12 laid down following:
“12.Thus, the dismissal of the appeal in Amanjyot Singh case was on the facts of the said case and has no application in the facts of the present case. The invocation of personal guarantee has to be in accordance with the terms of the guarantee agreement which is a settled law. Clause 7 of the guarantee agreement does not require any particular mode and manner of the demand notice. When demand notice is issued against the personal guarantor asking the personal guarantor to discharge its liabilities, the guarantee stands invoked. Whether notice under section 13(2) in a particular case invoked the guarantee or not depends on the words and intent of the notice. For finding out as to whether notice under section 13(2) invoked the personal guarantee, the letters and words of the notice has to be looked into to come to any conclusion that whether personal guarantor has been asked to discharge its liabilities or not. In the facts of the present case, we are of the considered opinion that the notice under section 13 (2) issued by the State Bank of India is a clear demand notice from the appellant to pay the amount of Rs. 28,56,64,336.06.”
The above judgment do support the submission of the Financial Creditor.
As far as the documents of Income Tax Return of the Personal Guarantor which have noticed to be not been filed along with the application, said was noticed in Para 21(i). However, in Para 21(ii), which is the reason given for holding the application as non-maintainable was absence of invocation of guarantee. Para 21(i) and (ii) are as follows:
“21.The second issue is Whether the petition filed under Section 95 of IBC is complete and maintainable?
i.It is seen that the Section 95 petition is incomplete as the Petitioner has failed to attach the Income Tax Returns of the Personal Guarantor for the preceding three years from the date of filing of the petition, as required under Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019. Further, the Petitioner has failed to attach any evidence/document of invocation of the guarantee of the Personal Guarantor.
ii.SFSPL also failed to explain as to why these documents could not be attached and also it is not maintainable in absence of invocation of guarantee. Even the RP has failed to explain as to why these documents were not attached with the petition and the RP has also not verified the financial status of the Personal Guarantor. It is settled law (Hon'ble Supreme Court's judgment in Dilip B Jiwrajka Vs Union of India & Ors Writ Petition (Civil) No 1281 of 2021) that this Adjudicating Authority is not bound to accept the report filed by the RP under Section 99 of the Code until and unless it is complete or filed after invocation of the guarantee. Thus, the petition under Section 95 of IBC filed by SFSPL is not maintainable.”
We have noticed above that Section 95 application relies on legal notice dated 07.12.2020 and demand notice under Rule 7 in Form B was dated 14.12.2020, it was incumbent upon the Adjudicating Authority to find out as to whether the legal notice dated 07.12.2020 could be said to be notice invoking guarantee but without adverting to the said legal notice which was admittedly served on the Personal Guarantor, the application was rejected as non-maintainable. It is useful to notice reply filed by the Personal Guarantor in Company Appeal (AT) (Ins.) No.1141 of 2025 where it was noticed that the Financial Creditor has admitted legal notice dated 07.12.2020 to the Personal Guarantor. Para 11 of the reply is as follows:
“11.Despite the fact that the outstanding lease rentals were only INR 35 lakh approximately, the Appellant addressed a Legal Notice to the Corporate Debtor and Respondent on 7 December 2020 (the "Legal Notice"), demanding payment of INR 9.97 crore along with penal interest @ 7% and additional default interest @ 3%. The Legal Notice further stated that a failure to clear the dues within 30 days would be treated as a dispute and that the arbitration clause contained in Clause 30 of the Master Lease Agreement would effectively be deemed to have been invoked.”
From the above discussion it is clear that legal notice dated 07.12.2020 and notice of demand issued under Rule 7 in Form B dated 14.12.2020 were two separate notices and legal notice dated 07.12.2020 was clearly notice of invocation of guarantee as per the Deed of Guarantee, which contemplate written communication from the Lessor to the Lessee. We thus are satisfied that in the present case, the guarantee was invoked by legal notice dated 07.12.2020 prior to issuance of demand notice dated 14.12.2020. There is no dispute to the proposition laid down by this Tribunal in State Bank of India vs. Deepak Kumar Singhania (supra) relied by the Adjudicating Authority that demand notice issued under Rule 7 in Form B cannot be said to be notice of invocation of guarantee since invocation of guaranteed has to take place prior to issuance of demand notice. We have noticed above that in the above case only notice relied for invocation was demand notice issued in Form B. In the present case the Financial Creditor has relied on the legal notice dated 07.12.2024 and the Adjudicating Authority did not advert to the said legal notice and has held the Section 95 application as non-maintainable on the ground that demand notice cannot be said to be notice for invocation. We thus are of the view that the very basis of the order of the Adjudicating Authority rejecting section 95 application is unfounded.
Submission has been made by learned counsel appearing for the Auction Purchaser that application filed by the Financial Creditor was incomplete, defective and premature. It is submitted that since guarantee has not been invoked no proceeding against the Personal Guarantor could have been initiated. It is further submitted that the Adjudicating Authority itself found that Income Tax assessment of the Personal Guarantor were not filed which made the application incomplete. The Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 provides for filing of the application and documents. The application is to be filed in Form C (Rule 7 Sub-rule (2)). In Form C under Part II – Particulars of the Guarantor at Item No.6 mentions ‘Annual Income (to the extent known)’. We, thus, are of the view that in event the Income Tax Return of the Personal Guarantor are not filed, application cannot be held to be defective. Item No.8 Part II only requires mention of Annual Income in event it is known. It was not any requirement to file Income Tax Return, as has been observed by the Adjudicating Authority in the impugned order. Hence, the observation of the Adjudicating Authority that application is defective cannot be accepted. We having already held that invocation of guarantee was made by legal notice dated 07.12.2020 and there was no requirement of filing Income Tax Return and application filed by the Financial Creditor cannot be held to be defective application.
Section 96 of the I&B Code provides for interim moratorium on filing of the application. Section 96 of the Code provides as follows:
“96.Interim-moratorium. - (1) When an application is filed under section 94 or section 95—
(a)an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and
(b)during the interim-moratorium period—
(i)any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and
(ii)the creditors of the debtor shall not initiate any legal action or proceedingsJ1 in respect of any debt.
(2)Where the application has been made in relation to a firm, the interim-moratorium under sub-section (1) shall operate against all the partners of the firm as on the date of the application.
(3)The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.”
Section 96 contemplates commencement of interim moratorium on filing of application under Section 94 or 95. We, thus, are not persuaded to accept the submission of learned counsel appearing for the Auction Purchaser that application filed by the Financial Creditor was defective and interim moratorium will not commence from filing of the application. Shri Ganda has placed reliance on the judgment of this Tribunal in “Arvind Dham v. State Bank of India, Company Appeal (AT) (Ins.) No.509 of 2024” to support his submission that when application under Section 95 which was filed before the Adjudicating Authority was not complete, the interim moratorium will not commence. In Arvind Dham’s case, appeal was filed by the Personal Guarantor against order dated 28.02.2024 by which Section 95(1) application filed by the State Bank of India was admitted under Section 100. In Para 13 of the above judgment, this Tribunal has held that when application under Section 95 was filed before the Adjudicating Authority it has no jurisdiction to entertain the application, therefore, interim moratorium shall not commence. Para 13 of the judgment is as follows:
“13.Filing of Section 95 application before the Adjudicating Authority has to be as per Section 60(1) and 60(2). The Adjudicating Authority referred to in Section 95(1) is the Adjudicating Authority which has jurisdiction to entertain the application under Section
95.In the present case, the application filed by the L&T Finance under Section 95, which was filed before NCLT, New Delhi was clearly not maintainable since as per Section 60(2) of the Code application under Section 95 by L&T Finance ought to have been filed before the Adjudicating Authority where insolvency resolution process against the Corporate Debtor is pending. Section 7 application filed by State Bank of India against Castex Technologies Pvt. Ltd. on 20.12.2017 being pending before NCLT, Chandigarh, no application filed against Personal Guarantor was maintainable at NCLT, New Delhi and the application filed by L&T Finance on 23.01.2020 under Section 95 was not filed before the Adjudicating Authority who was competent to entertain the application, hence, the interim moratorium under Section 96 shall also not kick-in since the application was not filed before jurisdictional NCLT. In event, the submission of the Appellant is accepted that on application filed before the Adjudicating Authority which has no jurisdiction to entertain the application against Personal Guarantor interim moratorium may kick-in that will be against the statutory scheme under the I&B Code.”
In the above case, the Personal Guarantor was contesting that application filed by the State Bank of India under Section 95 could not have been admitted since L&T Finance has filed another application against the Corporate Debtor before NCLT, Chandigarh which was pending, hence, no application filed against the Personal Guarantor was maintainable by NCLT, New Delhi. The said submission was not accepted for reason given in Para
This judgment of this Tribunal shall not come any aid in any manner as the case of learned counsel for the Auction Purchaser is not that the application filed by the Financial Creditor - Siemens Financial Services Private Limited is not maintainable before NCLT Chandigarh.
Another judgment relied by Shri Ganda, learned counsel for the Auction Purchaser is judgment of this Tribunal in “Company Appeal (AT) (Ins.) No. 393 of 2025, Royal Construction vs Gannon Dunkerley and Company Limited” where Section 9 application filed by the Operational Creditor was dismissed. Reliance is placed on Para 14 of the order, where following was observed:
“14.The contention of the Appellant that the Adjudicating Authority should have modified the date of default after examining the records is an absurd proposition. If the date of default required any change or modification, the onus was on the Appellant to have sought leave of the Adjudicating Authority to file an amendment application. To expect the Adjudicating Authority to have amended the date of default without any amendment application or specific pleading made for such a modification would tantamount to the Adjudicating Authority exceeding its jurisdiction which cannot be countenanced.”
The above was a case where submission of the Appellant that the Adjudicating Authority should have modified the date of default after examining the record was rejected. Application under Section 9 filed by the Appellant was dismissed by the Adjudicating Authority against which appeal was filed. The said judgment in no manner supports the submission of the Appellant. The submission of Shri Ganda that application filed under Section 95 by the Financial Creditor is non-est cannot be accepted. The application under Section 95 neither could be held to be defective nor non-est.
Shri Kathpalia, learned senior counsel appearing for the Financial Creditor has made much submission questioning the observations and findings of the Adjudicating Authority by which the interim moratorium has been retrospectively invalidated after dismissing application under Section 95.
We having found the order of the Adjudicating Authority rejecting Section 95 application unsustainable, the entire order has to be set aside. We, thus, do not find it necessary to enter into the issue raised by Shri Kathpalia nor said issue need to be answered in facts of the present case.
In view of the foregoing discussion and conclusions, we are of the view that Appeal filed by the Financial Creditor - Siemens Financial Services Private Limited deserves to be allowed and order dated 04.07.2025 has to be set aside. In result, Company Appeal (AT) (Ins.) No.1141 of 2025 is allowed. Impugned Order dated 04.07.2025 is set aside. Company Petition (IB) No. 178/Chd/Hry/2021 as well as I.A. No. 2026/2024 and I.A. No. 2027/2024 stand revived. The Adjudicating Authority may pass fresh order under Section 100 in Company Petition (IB) No. 178/Chd/Hry/2021. Application being pending for last more than four years; the Adjudicating Authority may expeditiously pass order on Company Petition (IB) No. 178/Chd/Hry/2021 preferably within three months of the date copy of this order is produced before the Adjudicating Authority.
We having allowed Company Appeal (AT) (Ins.) No.1141 of 2025, no orders are necessary to be passed in Company Appeal (AT) (Ins.) No.1082 of 2025. Company Appeal (AT) (Ins.) No.1082 of 2025 is disposed of accordingly.
Parties shall bear their own costs.