2022 (7) TMI 1573 - Tri - IBC

Seeking an order for initiation of the Insolvency Resolution Process - Clause-F of the approved Resolution Plan bars the Financial Creditor from initiating the Insolvency Resolution Process against the Personal Guarantor. Whether the Clause-F of the approved Resolution Plan bars the Financial Creditor to initiate Insolvency Resolution Process against the Personal Guarantor? - HELD THAT - It is a settled position of law the liability of Personal Guarantors are co-extensive with that of Principal Borrower. As per the Section 134 of the Indian Contract Act 1872 a guarantor is discharged of its liability towards the creditor only if the creditor on its own instance discharges the Principal Debtor. The main ingredient of this section is discharge of the debtor through voluntary act of creditor and not due to operation of law. The conclusion of Corporate Insolvency Resolution Plan does not bar Financial Creditor against Guarantor and Financial Creditor can always approach this Adjudicating Authority as envisaged under the Code - Clause-F of Resolution Plan discharges the Personal Guarantor of Corporate Debtor for any future liabilities. Conclusion - The Financial Creditor is entitled to initiate the Insolvency Resolution Process against the Personal Guarantor. It declared the Personal Guarantor insolvent and initiated the process including a moratorium on legal actions against the debtor and the appointment of a Resolution Professional to manage the process. Petition admitted.

Summary

The core issue considered in this judgment is whether Clause-F of the approved Resolution Plan bars the Financial Creditor from initiating the Insolvency Resolution Process against the Personal Guarantor. The Tribunal examined the legal framework under the Insolvency and Bankruptcy Code, 2016, and relevant precedents to determine the extent of liability of a personal guarantor after the approval of a corporate debtor's resolution plan.

The Tribunal analyzed the relevant legal framework, including Section 95(1) of the Insolvency and Bankruptcy Code, 2016, and the Indian Contract Act, 1872, particularly Section 134. The Tribunal also considered precedents such as the Supreme Court's decision in Lalit Kumar Jain v. Union of India, which held that the approval of a resolution plan does not discharge a personal guarantor's liabilities under a contract of guarantee.

The Tribunal noted that the liability of personal guarantors is co-extensive with that of the principal borrower. It emphasized that a guarantor is discharged of liability only if the creditor voluntarily discharges the principal debtor, not through the operation of law. The Tribunal found that the approval of a resolution plan under the Code is an act of law, not a voluntary act by the creditor, and therefore does not discharge the guarantor's liability.

The Tribunal addressed the argument that Clause-F of the Resolution Plan discharged the personal guarantor's liabilities. The Financial Creditor contended that Clause-F pertains to the corporate debtor and does not extend to personal guarantors. The Tribunal agreed, stating that interpreting Clause-F to discharge personal guarantors would undermine the Code's objectives and have adverse effects.

The Tribunal also considered the argument that the Financial Creditor, as part of the Committee of Creditors, was aware of the resolution plan's approval. However, the Tribunal held that the Financial Creditor retains the right to proceed against personal guarantors, as the resolution plan's approval does not bar such actions.

Significant holdings include the reaffirmation that the liabilities of personal guarantors are not discharged by the approval of a corporate debtor's resolution plan. The Tribunal emphasized that the Code allows for separate insolvency proceedings against personal guarantors, reinforcing the co-extensive nature of their liabilities with the principal debtor.

The Tribunal concluded that the Financial Creditor is entitled to initiate the Insolvency Resolution Process against the Personal Guarantor. It declared the Personal Guarantor insolvent and initiated the process, including a moratorium on legal actions against the debtor and the appointment of a Resolution Professional to manage the process.