2022 (1) TMI 1294 - AT - Insolvency and Bankruptcy

Rejection of application as premature - seeking initiation of Corporate Insolvency Resolution Process against the Guarantor - Section 95(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - The Adjudicating Authority erred in holding that since no CIRP or Liquidation Proceeding of the Corporate Debtor are pending the application under Section 95(1) filed by the Appellant is not maintainable. The Application having been filed under Section 95(1) and the Adjudicating Authority for application under Section 95(1) as referred in Section 60(1) being the NCLT, the Application filed by the Appellant was fully maintainable and could not have been rejected only on the ground that no CIRP or Liquidation Proceeding of the Corporate Debtor are pending before the NCLT. The Application filed by the Appellant under Section 95(1) of the Code is revived before the NCLT which may be proceeded in accordance with the law. Appeal allowed.

Summary

Issues: Interpretation of Section 60(2) of the Insolvency and Bankruptcy Code

Issue 1: Correct interpretation of Section 60(2) of the Code
The judgment deals with the correct interpretation of Section 60(2) of the Insolvency and Bankruptcy Code, 2016. The Appellant filed an appeal against the rejection of their application seeking initiation of Corporate Insolvency Resolution Process against the Guarantor. The National Company Law Tribunal rejected the application as premature due to the absence of any pending Corporate Insolvency Resolution Process or Liquidation Process against the Corporate Debtor. The Appellant argued that the NCLT misinterpreted Section 60(2) and contended that the application was maintainable under Section 60(1) despite the lack of pending proceedings. The Respondent, however, supported the NCLT's decision, emphasizing the requirement of pending proceedings under Section 60(2) for filing applications related to the Insolvency Resolution Process of Guarantors.

Analysis:
The judgment extensively analyzes the provisions of Section 60(1) and (2) of the Code. Section 60(1) establishes the Adjudicating Authority for corporate persons, including debtors and guarantors, as the National Company Law Tribunal. On the other hand, Section 60(2) outlines that when a Corporate Insolvency Resolution Process or Liquidation Proceeding of a Corporate Debtor is pending before the NCLT, applications related to the Insolvency Resolution of Guarantors should also be filed before the same NCLT. The purpose of this provision is to consolidate proceedings involving the Corporate Debtor and Guarantors before a single NCLT. Importantly, the judgment clarifies that Section 60(2) is only applicable when proceedings against the Corporate Debtor are pending, and it does not prohibit the filing of applications under Section 95 if no such proceedings are ongoing.

Conclusion:
The Appellate Tribunal, after considering the arguments of both parties and examining the statutory provisions, concluded that the NCLT erred in rejecting the application solely based on the absence of pending proceedings against the Corporate Debtor. The judgment emphasizes that Section 60(2) supplements Section 60(1) and applies only when proceedings against the Corporate Debtor are ongoing. Therefore, the Appellant's application under Section 95(1) was deemed maintainable, and the order of the Adjudicating Authority was set aside. The Appellate Tribunal allowed both appeals, reviving the application before the NCLT for further proceedings in accordance with the law.