2017 (8) TMI 1678 - AT - Insolvency and Bankruptcy

Attachment of movable and immovable property - grievance of the appellant is that the movable and immovable property of Guarantor (promoter) has been attached pursuant to Corporate Resolution Process initiated under section 10 against the Appellant-Corporate Applicant - HELD THAT - Section 60 of the I B Code, as per which under sub-section (2) if Corporate Insolvency Resolution Process, or liquidation proceeding of a corporate debtor is pending before the 'Adjudicating Authority', an application relating to the 'insolvency resolution' or 'bankruptcy' of a personal guarantor required to be filed before the same Bench of Adjudicating. Authority, meaning thereby, separate application for initiation of resolution process require to be filed against the guarantor before the same very Bench of the Adjudicating Authority who is hearing the corporate resolution process or liquidation proceeding against principal corporate debtor. Sub-section (3) of Section 60 further makes it clear that if an insolvency resolution process or bankruptcy proceeding of a personal guarantor of the corporate debtor is pending before any other court of law or Tribunal, such as Debt Recovery Tribunal , who is the Adjudicating Authority for the purpose of Part-III- Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms all those proceeding shall also stand transferred to the Adjudicating Authority, dealing with insolvency resolution process or liquidation proceeding of the Corporate Debtor - Sub-section (5) of Section 60 further makes it clear that the Adjudicating Authority has jurisdiction to entertain and dispose of an application or proceeding by or against the Corporate Debtor or corporate person including any claim made by or against the Corporate Debtor or Corporate person, including claims by or against any of its subsidiaries situated in India. The appeal is dismissed.

Issues Involved:
Challenge to order admitting application under Section 10 of the Insolvency and Bankruptcy Code, 2016; Interpretation of Moratorium under Section 14 of the Code; Applicability of Moratorium on properties of Guarantor; Transfer of insolvency resolution process or bankruptcy proceeding of a personal guarantor to the Adjudicating Authority; Jurisdiction of the National Company Law Tribunal under Section 60 of the I&B Code.

Issue 1: Challenge to order admitting application under Section 10 of the Insolvency and Bankruptcy Code, 2016:
The Appellate Tribunal dealt with a challenge to an order passed by the Adjudicating Authority admitting an application under Section 10 of the Insolvency and Bankruptcy Code, 2016. The Appellant, a Corporate Applicant, contested the order which admitted the application, imposed a Moratorium, and directed the appointment of an Insolvency Resolution Professional. The Tribunal analyzed the provisions of the Code and upheld the Adjudicating Authority's decision to admit the application, subject to certain exceptions.

Issue 2: Interpretation of Moratorium under Section 14 of the Code:
The Tribunal examined the interpretation of the term "Moratorium" under Section 14 of the Insolvency and Bankruptcy Code. It emphasized that the Moratorium prohibits actions to recover or enforce any security interest created by the Corporate Debtor in respect of "its" property. The Tribunal clarified that the Moratorium applies only to the properties owned by the Corporate Debtor as reflected in its Balance Sheet. Properties not owned by the Corporate Debtor do not fall within the scope of the Moratorium, and the Tribunal highlighted the significance of the term "its" in determining the application of the Moratorium.

Issue 3: Applicability of Moratorium on properties of Guarantor:
The Tribunal addressed the issue of whether the Moratorium extends to the movable and immovable properties of a Guarantor (promoter) in the context of a Corporate Resolution Process initiated under Section 10 against the Corporate Applicant. The Tribunal noted a dispute regarding the attachment of the Guarantor's properties and emphasized that the Moratorium applies only to the properties owned by the Corporate Debtor, excluding those of third parties like Guarantors. It clarified that the Moratorium does not cover assets of Guarantors individually.

Issue 4: Transfer of insolvency resolution process or bankruptcy proceeding of a personal guarantor to the Adjudicating Authority:
The Tribunal referred to Section 60 of the Insolvency and Bankruptcy Code, which deals with the Adjudicating Authority for corporate persons and personal guarantors. It highlighted the provision that requires applications related to the insolvency resolution or bankruptcy of a personal guarantor to be filed before the same Adjudicating Authority handling the corporate insolvency resolution process. The Tribunal emphasized the transfer of proceedings involving personal guarantors to the Adjudicating Authority dealing with the corporate debtor's insolvency resolution process.

Issue 5: Jurisdiction of the National Company Law Tribunal under Section 60 of the I&B Code:
The Tribunal examined the jurisdiction of the National Company Law Tribunal as outlined in Section 60 of the Insolvency and Bankruptcy Code. It emphasized that the Adjudicating Authority has the power to entertain and dispose of applications or proceedings related to corporate debtors and personal guarantors. The Tribunal clarified the jurisdiction of the National Company Law Tribunal in handling claims and proceedings involving corporate debtors and their subsidiaries, ensuring a comprehensive approach to insolvency resolution and liquidation processes.

In conclusion, the Appellate Tribunal upheld the order admitting the application under Section 10 of the Insolvency and Bankruptcy Code, emphasizing the interpretation of Moratorium, the application of Moratorium on properties, and the transfer of proceedings involving personal guarantors. The Tribunal provided a detailed analysis of the legal provisions and jurisdiction of the National Company Law Tribunal, ensuring a comprehensive understanding of the issues involved in the judgment.

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