2018 (10) TMI 1838 - Tri - Insolvency and Bankruptcy

Jurisdiction - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - National Company Law Tribunal is bereft of jurisdiction to deal with these cases because jurisdiction to try the cases against guarantors has not yet been notified by the Government till now. This Bench has already decided that National Company Law Tribunal is bereft of jurisdiction as stated by the respondents in miscellaneous applications, M/s. L and T Infrastructure Finance Co. Ltd., another financial creditor, filed against more or less against the same respondents for they remained guarantors even to the loan availed by the same corporate debtor from M/s. L and T Infrastructure Finance Co. Ltd., under same section of law - Nevertheless this point of filing independent petitions will not make any difference to the legal point of want of jurisdiction to deal with these cases ; therefore we place that discussion to apply it in toto to these cases to say that these cases shall also be dismissed in limine on the same point. Petition dismissed.

Issues Involved:
1. Jurisdiction of the National Company Law Tribunal (NCLT) to initiate insolvency proceedings against personal guarantors.
2. Applicability of Section 60(2) of the Insolvency and Bankruptcy Code (IBC), 2016.
3. Interpretation of the Supreme Court judgment in State Bank of India v. V. Ramakrishnan.
4. Notification status of Part III of the IBC.

Detailed Analysis:

1. Jurisdiction of the National Company Law Tribunal (NCLT) to Initiate Insolvency Proceedings Against Personal Guarantors:
The core issue in these petitions was whether the NCLT has the jurisdiction to initiate insolvency proceedings against personal guarantors of a corporate debtor. The NCLT concluded that it lacks jurisdiction to handle such cases because Part III of the Insolvency and Bankruptcy Code (IBC), which deals with insolvency and bankruptcy of individuals and partnership firms, has not been notified. The tribunal emphasized that without the notification of Part III, the NCLT cannot assume the role of the Debts Recovery Tribunal (DRT) for proceedings against personal guarantors.

2. Applicability of Section 60(2) of the Insolvency and Bankruptcy Code (IBC), 2016:
The petitioner, State Bank of India, argued that Section 60(2) of the IBC allows creditors to initiate insolvency proceedings against personal guarantors before the NCLT where the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor is pending. However, the NCLT held that Section 60(2) cannot be invoked independently to initiate proceedings against personal guarantors unless Part III of the IBC is notified. The tribunal clarified that the jurisdiction conferred under Section 60(2) is contingent upon the notification of Part III and the empowerment of the DRT to handle such cases.

3. Interpretation of the Supreme Court Judgment in State Bank of India v. V. Ramakrishnan:
The respondents argued, and the NCLT agreed, that the Supreme Court judgment in State Bank of India v. V. Ramakrishnan does not confer jurisdiction on the NCLT to initiate insolvency proceedings against personal guarantors. The NCLT noted that the Supreme Court's judgment primarily addressed the applicability of the moratorium under Section 14 of the IBC to personal guarantors and did not extend the NCLT's jurisdiction to initiate insolvency proceedings against them. The NCLT emphasized that the Supreme Court clarified that personal guarantors could not be proceeded against under the IBC until Part III is notified.

4. Notification Status of Part III of the IBC:
The NCLT highlighted that Part III of the IBC, which deals with insolvency and bankruptcy of individuals and partnership firms, has not been notified. Consequently, the jurisdiction to handle insolvency proceedings against personal guarantors has not been conferred upon the DRT, and by extension, the NCLT cannot assume such jurisdiction. The tribunal underscored that without the notification of Part III, any proceedings against personal guarantors initiated before the NCLT would be void ab initio.

Conclusion:
The NCLT dismissed the petitions filed by the State Bank of India against the personal guarantors as misconceived. The tribunal reiterated that it lacks jurisdiction to initiate insolvency proceedings against personal guarantors until Part III of the IBC is notified. The NCLT provided liberty to the petitioner to proceed in accordance with the law under the existing legal framework.

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