# In the matter of Santosh Kumar Dhirajlal Pathak vs. Technology Development Board & Ors.

> NCLT judgment dated 2024-05-17. Citation: TCN-2024-NCLT-01310. The application was filed under Section 94(1) of the Insolvency and Bankruptcy Code, 2016, read…

- **Court:** NCLT
- **Order date:** 17 May 2024
- **Citation:** TCN-2024-NCLT-01310
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-division-bench-court-i-chenn/santosh-kumar-dhirajlal-pathak-vs-technology-development-board-ors-f193d5cb

## Summary

### Background

The application was filed under Section 94(1) of the Insolvency and Bankruptcy Code, 2016, read with Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for IRP for Personal Guarantors to Corporate Debtor) Rules, 2019. The applicant, Santosh Kumar Dhirajlal Pathak, provided a personal guarantee for Gujarat Oleo Chem Ltd., which is mentioned as the Corporate Debtor. The application lacked details regarding the date of defaults, invocation of guarantees, and other financial creditors. The applicant mentioned in Part III that the amount of debt in default and any interest or penalties were 'Not Applicable'.

## Facts

Santosh Kumar Dhirajlal Pathak filed an application under Section 94(1) of the Insolvency and Bankruptcy Code, 2016, as a personal guarantor to Gujarat Oleo Chem Ltd. The application was for initiating an Insolvency Resolution Process. The application lacked key details such as the date of default and invocation of guarantees. Stressed Asset Stabilization Fund, Respondent no.2, had previously filed an application before DRT-II, Ahmedabad, against Gujarat Oleo Chem Ltd. and others, including the Petitioner/Guarantor, which was adjudicated on 22.11.2019. A Recovery Certificate (RC No.118/2019) was issued with a demand/notice dated 13.11.2020 for Rs.161,66,79,295/- including interest. The Resolution Professional (RP) filed a report recommending the admission of the

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## Issues and analysis

### Issue 1: Whether the application under Section 94 of the IBC is maintainable without the invocation of …

**Ratio:** Invocation of guarantee by a financial creditor is a mandatory requirement for

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**Reasoning:** The court observed that there was no information placed in the application regarding the

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**Interpretation:** Section 94 of the IBC requires the invocation of a guarantee as a condition

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**Application:** In this case, since there was no invocation of guarantee by any financial

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## Parties

- **Judges:** Chitra Ha…; Velamur G Venkata…
- **Appellants:** Santosh Kumar…
- **Respondents:** Gujarat Oleo Chem…; TECHNOLOGY…

## Timeline

- **2016-01-01 — Enactment…**: The Insolvency and Bankruptcy…
- **2019-01-01 — Rules for Personal…**: The Insolvency and Bankruptcy (Application to Adjudicating Authority for IRP for Personal…

## 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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