2018 (6) TMI 734 - AT - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - Resolution Plan already been approved - Held that - The order of Moratorium will be applicable to the proceedings against the Corporate Debtor and the Guarantor , if pending before any court. However, such order of Moratorium will not be applicable for triggering Corporate Insolvency Resolution Process under Section 7 or 9 of the Insolvency and Bankruptcy Code, 2016 against the Guarantor or the Personal Guarantor . Resolution Plan having approved subsequently on 12th February, 2018 will not affect the rights of Appellant- Financial Creditor, who filed the application under Section 7 much prior to approval of the Resolution Plan. Infact the impugned order was passed on 15th December, 2017 i.e. much prior to the approval of Resolution Plan. The case is remitted to the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata for admission of the application, if the application is complete, after notice to the parties. If there is any defect, the Adjudicating Authority will allow the Appellant to remove the defects within a reasonable time

Summary

Issues:
1. Whether Corporate Insolvency Resolution Process can be initiated against a Guarantor during the pendency of proceedings against the Principal Borrower?

Analysis:
The Appellate Tribunal deliberated on the issue of initiating Corporate Insolvency Resolution Process against a Guarantor while proceedings against the Principal Borrower were ongoing. The Adjudicating Authority had previously dismissed such an application based on the premise that proceedings against the Guarantor cannot be initiated during the pendency of proceedings against the Principal Borrower.

In a previous case, the Appellate Tribunal had ruled that a Financial Creditor could indeed proceed against the Personal Guarantor of the Corporate Debtor by filing an application related to bankruptcy of the Personal Guarantor. The Tribunal highlighted the powers vested in the Adjudicating Authority under the Insolvency and Bankruptcy Code for this purpose, emphasizing the prohibition on suits, transfer of assets, and enforcement of security interests against the Corporate Debtor.

Subsequently, in another case, the Tribunal reiterated that the order of Moratorium would apply only to proceedings against the Corporate Debtor and the Guarantor pending before any court but not to the initiation of Corporate Insolvency Resolution Process against the Guarantor. The rights of the Financial Creditor to file such applications were upheld, irrespective of the approval of a Resolution Plan post the application filing.

The Appellate Tribunal overturned the decision of the Adjudicating Authority, directing the case to be remitted for admission of the application if complete, allowing the Appellant to rectify any defects within a reasonable time. The decision was based on the precedence set by previous judgments and the interpretation of the Insolvency and Bankruptcy Code provisions regarding the initiation of Corporate Insolvency Resolution Process against Guarantors.

In conclusion, the Tribunal clarified the applicability of the Moratorium order, ensuring the rights of Financial Creditors to pursue Corporate Insolvency Resolution Process against Guarantors, even if proceedings against the Corporate Debtor were ongoing. The judgment emphasized the procedural aspects and the adherence to legal provisions under the Insolvency and Bankruptcy Code in such scenarios.