M.P. Mansinghka vs Industrial Finance Corporation ...
2006 Latest Caselaw 1713 Del

JUDGMENT

Kailash Gambhir, J.

1. The petitioner in the present writ petition has challenged the order of the Debts Recovery Tribunal dated 7.3.2006 passed in appeal No. 220 of 2004. In the said appeal before the Debts Recovery Appellate Tribunal, the challenge was made against the judgment of the Debt Recovery Tribunal dated 5.6.2002 in O.A. No. 7 of 2001 (corrected and modified on 23.9.2002). The Debt Recovery Tribunal vide order dated 5.6.2002 had passed a judgment and decree against the petitioner and respondent Nos.2 and 3 for a sum of Rs. 22,22,40,407/- (Rupees twenty-two crores lacs forty thousand four hundred and seven only) together with interest at the rate "of 6% per annum payable within six months from the date of judgment, failing which 12% simple interest has been directed to be paid from the date of filing the original application till realisation. The decree is joint and several against the petitioner and respondent Nos.2 and 3. The contentions which have been raised before us have been squarely dealt with in the order passed by the Appellate Tribunal and we do not find any infirmity in the said order. The first contention raised by the petitioner is that since he had resigned from the Board of Directorship of respondent No. 2-company on 20.1.1997 and vide his communication dated 21.1.1997 he had informed the respondent No. 1 about the revocation of his guarantee, therefore, he stood absolved from any sort of liability arising out of the loan transaction between respondent Nos. 1 and 2 pursuant to loan agreement dated 29.11.1991. Another contention which has been raised by Counsel for the petitioner is that the original application filed by respondent No. 1 was grossly barred by limitation as the loan agreement was executed in the year 1991 and, therefore, the original application which was filed in the year 2000 apparently became barred by time.

2. The liability of the Director has to be ascertained not from the date when he tendered resignation or from the date when he had revoked the personal guarantee as was offered by him but from the date when the loan was advanced and the loan agreement was executed unless the creditor itself consents or approves to any subsequent arrangement. Admittedly, the loan was advanced in the year 1991 and, therefore, the said resignation dated 20.1.1997 from the Board of Directors could not have absolved the petitioner from his liability and he continued to remain jointly and severally liable along-with the company and its other Director i.e. respondent Nos.2 and 3 herein. As far as other contention of the petitioner is concerned that since the loan was advanced in the year 1991 and, therefore, the period of limitation came to an end within 3 years period, has also no force as the petitioner had given his personal guarantee by mortgaging immovable property in the year 1991 and the limitation for enforcing the claim involving mortgaged property is 12 years and not 3 years as per Article 62 of the Limitation Act. We, therefore, do not agree with the contention of the petitioner that since the loan was granted in the year 1991 and on document of acknowledgement of debt was filed on record, therefore, the period of 12 years could not have been taken into consideration for the limitation period. The loan was advanced in the year 1991, loan agreement was also executed in the year 1991, Deed of Guarantee by mortgaging immovable property was executed in 1991 and taking 12 years period of limitation, the same would be over only by 2003. In the present case original application was filed in the year 2000 which was numbered in the year 2001, therefore, taking the said period of 12 years the original application filed by respondent No. 1 was well within limitation and not barred by time.

3. With these observations, the appeal is dismissed.