Authority: National Company Law Tribunal Mumbai Bench - I

Order Date: 11.06.2026

Case Overview

The petition was filed by Omkara Assets Reconstruction Private Limited (acting as Trustee of Omkara PS 28/2021-22 Trust) under Section 95 of the Insolvency and Bankruptcy Code, 2016 against Mr. Agnello Louis D'Souza as personal guarantor for debt owed by Marshall Breeders Private Limited (Corporate Debtor).

The Applicant claimed to be assignee of debt originally owed to Janalaxmi Co-operative Bank Limited, which had sanctioned credit facilities of ₹2.20 crore to Marshall Breeders on 02.04.2002. The total claimed default was ₹18,33,67,574/- as on 31.05.2024 with interest at 17% per annum and penal interest at 1% per annum. The date of default was stated as 02.09.2016 (60 days from SARFAESI notice).

The Respondent denied being a guarantor, alleging documents were forged and fabricated. Key contentions included: he was never a director of Corporate Debtor; assignment deed dated 31.12.2021 didn't include his name as guarantor; original bank never impleaded him in Cooperative Case No. 1491 of 2005; and guarantee document was insufficiently stamped.

The Resolution Professional (Shri Prashant Jain, IBBI Registration No. IBBI/IPA-001/IP-P01368/2018-2019/12131) recommended admission of the application in his report dated 06.12.2024.

Findings and Analysis

The Tribunal examined multiple issues:

1. Invocation of Guarantee: Found that SARFAESI notice dated 04.07.2016 only asked guarantors to "compel the defaulting borrower" rather than demanding payment directly. Notice dated 01.02.2022 was deemed properly served despite respondent's denial.

2. Limitation: Petition filed within 3 years of 01.02.2022 notice was within limitation, though original default date was 02.09.2016.

3. Stamp Duty: Cited Supreme Court precedent that insufficient stamping doesn't render document void or unenforceable.

4. Guarantee Authenticity: Noted contradictory evidence - loan application showed respondent as guarantor, but audited financial statements (2003-2020) and cooperative court proceedings only listed other guarantors (Mrs. Terry Elias D'Souza and Mrs. Augusta R. D'Souza).

5. Assignment Scope: Critical finding - Schedule 1 of Assignment Agreement dated 31.12.2021 specifically listed only Mr. Elias Marshall D'Souza, legal heirs of Mr. Richard Marshall D'Souza, and Mr. Rudolph Anthony Lima as guarantors, excluding the respondent entirely.

6. Jurisdiction: Acknowledged that allegations of forgery typically require civil court adjudication but emphasized need to determine existence of debt and default.

Final Outcome

The Tribunal dismissed the petition, holding that:

  • The Petitioner failed to establish that the alleged guarantee executed by the respondent formed part of the financial assets validly assigned under the Assignment Agreement dated 31.12.2021
  • Consequently, the Petitioner lacks locus standi and legal entitlement to invoke or enforce the alleged guarantee against Mr. Agnello Louis D'Souza under Section 95 of the IBC
  • The Report of the Resolution Professional dated 06.12.2024 was not accepted

Topics: Personal Guarantee Insolvency, Debt Assignment, Guarantee Enforcement