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Judgment
These six appeals have been filed against the order of the same date passed in three different applications filed under Section 94 of the IBC for initiating CIRP against the personal guarantor of the appellant in Company Appeal (AT) (Ins) No. 1447 of 2024, 1448 of 2024 and 1482 of 2024. The Adjudicating Authority by the impugned order has rejected Section 94 application as barred by time.
The State Bank of India has filed three appeals challenging the same very orders passed in above three appeals. It is sufficient to notice the fact in Company Appeal (AT) (Ins) No. 1447 of 2024 for deciding all the three appeals filed by the personal guarantor. Ld. Counsel for the Appellant submit that Section 94 application was filed by the Personal guarantor appellant in which application was dated 19.11.2021.
It is submitted that after the submission of the report first hearing took place before the Adjudicating Authority on 19.04.2024 on which date following order was passed:
“Resolution Professional is observed to be sitting in car and arguing the matter online which is not permitted and she is treated as absent. None present for Personal guarantor. Though fresh notice is served upon all Financial Creditors only State Bank of India appeared. None present for Central Bank of India, Union Bank of India, hence, they are proceeded ex-parte. Heard Ld. Counsel for the State Bank of India.
Order is reserved”.
It is submitted that no one had appeared for the personal guarantors on the said date and Resolution Professional also could not reach in the court, only State Bank of India has appeared and no body appeared for other two Banks but Adjudicating Authority reserved the orders.
Ld. Counsel for the Appellant submit that in the impugned order the adjudicating authority in para 6 made the following observation:
“6. We have heard the learned Counsel for applicant and respondent no.1 and perused the documents on record. We have also gone through the report dated 10.12.2021 filed by the RP”.
It is submitted by the Counsel for the Appellant that Applicant was not present which is noticed in the reserving order but in the impugned order it has been observed that Applicant is present.
It is submitted that the order was passed by the Adjudicating Authority in absence of the appellant and the fact that the appellant could not appear on the date is noted in the order when the order was reserved.
It is submitted that RP has recommended for admission of the application. Adjudicating Authority neither heard the RP nor the Applicant.
At this stage, we may also notice the CA (AT) (Ins) No. 1540 of 2024 filed by the State Bank of India challenging the same order.
From the impugned order passed by Adjudicating Authority as well as the order reserving the application under Section 94 it is clear that neither the Resolution Professional was heard nor the Applicant personal guarantors were heard and it was wrongly recorded in paragraph 6 that applicant was heard.
Above is the sufficient reason to set aside the impugned order and remit the application for consideration before the Adjudicating Authority. The State Bank of India having also filed the appeal against the same order in the said appeal, in view of the setting aside of the order no orders are required in the appeal of the State Bank of India. We, however, make it clear that we are not expressing any opinion or any of the contentions raised by either of the parties and both the parties are at liberty to make all submissions before the Adjudicating Authority in support of their contentions.
Mr. Khare, Ld. Counsel appearing for State Bank of India submit that there are subsequent events including the issuance of recovery certificates. We are of the view that all these issues are to be placed before the Adjudicating Authority for consideration.
Considering the aforesaid we allow the CA (AT) (Ins) Nos. 1447 of 2024, 1448 of 2024, 1482 of 2024. In result of allowing of those appeals no orders are required in CA (AT) (Ins) Nos. 1538 of 2024, 1540 of 2024 and 1541 of 2024.
All the appeals are disposed of accordingly.