# In the matter of Kishorbhai Bhaturbhai Dhameliya

> NCLT judgment dated 2024-03-04. Citation: TCN-2024-NCLT-02224. The case pertains to an application filed under Section 94(1) of the Insolvency and Bankruptcy…

- **Court:** NCLT
- **Order date:** 4 Mar 2024
- **Citation:** TCN-2024-NCLT-02224
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-division-bench-court-i-chenn/kishorbhai-bhaturbhai-dhameliya-1cb8c79f

## Summary

### Background

The case pertains to an application filed under Section 94(1) of the Insolvency and Bankruptcy Code, 2016 by Kishorbhai Bhaturbhai Dhameliya, the Applicant/Personal Guarantor, to initiate the insolvency resolution process. The applicant is a guarantor to the Corporate Debtor M/s Gajanand Ginning & Pressing Private Limited. The application was filed in terms of Rule 6 of the IB (AAA for IRP for PGCD) Rules, 2019. The applicant has filed a copy of the Demand Notice dated 08.08.2023 issued by the Respondent/State Bank of India U/s 13(2) of the SARFAESI Act, 2002 and Possession Notice dated 06.12.2023 issued U/s 13(4) of SARFAESI Act, 2002.

## Facts

Kishorbhai Bhaturbhai Dhameliya, the applicant, filed an application under Section 94(1) of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the insolvency resolution process as a personal guarantor to M/s Gajanand Ginning & Pressing Private Limited, the Corporate Debtor. The application was filed based on a Demand Notice dated 08.08.2023 and a Possession Notice dated 06.12.2023 issued by the State Bank of India under the SARFAESI Act, 2002. The court noted that the notices were issued for enforcing security interest, not to invoke the personal guarantee. The applicant argued that the demand notice required him to pay the dues. However, the court found no evidence that the bank had taken steps to recover dues from the applicant's personal assets or

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## Issues and analysis

### Issue 1: Whether the application filed under Section 94(1) of the Insolvency and Bankruptcy Code, 2016 by …

**Ratio:** The application under Section 94(1) is not maintainable if the creditor has not taken

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**Reasoning:** The court relied on the decision of the Hon'ble NCLAT in Amanjyot Singh Vs. Navneet Kumar

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**Interpretation:** Section 94(1) of the IBC requires a clear indication that the creditor intends

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**Application:** In this case, the bank's actions were limited to enforcing security interest

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## Parties

- **Judges:** SHAMMI…; V. G. Venkata…
- **Appellants:** Kishorbhai…
- **Respondents:** Gajanand Ginning…; State Bank of…

## Timeline

- **2023-08-08 — Demand N…**: State Bank of India issued a Demand Notice to the Applicant under Section 13(2) of the…
- **2023-12-06 — Possession…**: State Bank of India issued a Possession Notice to the Applicant under Section 13(4) of…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 94(1) — Application by debtor to initiate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-94)

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