9911796707
TMI Blog2018 (6) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... d the ‘Personal Guarantor’, if pending before any court of law/Tribunal or authority but the will not be applicable for filing application for triggering ‘Corporate Insolvency Resolution Process’ under Sections 7 or 9 or 10 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “I&B Code”) against the ‘Guarantor’ or the ‘Personal Guarantor’ under Section 60(2). As noticed that Part-III of ‘I&B Code’ has not been given effect but Part-II Section 60(2) having come into force, if ‘Corporate Insolvency Resolution Process’ has been initiated against the ‘Corporate Debtor’, the Insolvency and Bankruptcy Resolution Process against the ‘Personal Guarantor’ can be filed under section 60(2) before the same Adjudicating Authority (Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that IN THE HIGH COURT OF ALLAHABAD writ - C Nos. 30285 and 30033 of 2017 Decided On: 06.09.2017 Appellants: Sanjeev Shriya and Ors. Vs. Respondent: State Bank of India and Ors. Sanjeev Shriya and Ors. Vs. State Bank of India and Ors. (06.09.2017 - ALLHC) : MANU/UP/2243/2017 The operative portion of Hon'ble High Court's orders are reproduced below: "This Court is of the considered opinion that in the aforementioned facts and circumstances once the sufficient safeguards are provided in the IBC, 2016 & the regulations framed thereunder to the bank, and even the liability has not been crystallized either against the principal debtor or guarantors/mortgagors at present, then the proceeding, which is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in "State Bank of India V/s. V. Ramakrishnan & Ors. (Supra)", wherein this Appellate Tribunal by its judgment dated 28th February, 2018 observed and held as follows: "13. Therefore, a 'Financial Creditor', including Appellant-State Bank of India, if intends to proceed against the 'Personal Guarantor' of the 'Corporate Debtor', may file an application relating to 'Bankruptcy' of the 'Personal Guarantor' before the same Adjudicating Authority ('Division Bench, Chennai' herein). Though, Part III of the 'I&B Code' has not yet notified but the Adjudicating Authority is vested with all the powers of the Debt Recovery Tribunal (Adjudicating Authority under Part III) as contemplated under Part III of the 'I&B Code' for the purpose of sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Resolution Plan' if approved by the 'Committee of Creditors' under sub-section (4) of Section 30 and if the same meets the requirements as referred to in sub-section (2) of Section 30 and once approved by the 'Adjudicating Authority' is not only binding on the 'Corporate Debtor', but also on its employees, members, creditors, guarantors and other stakeholders involved in the 'Resolution Plan', including the 'Personal Guarantor'. 18. In view of the aforesaid provisions, we hold that the 'Moratorium' will not only be applicable to the property of the 'Corporate Debtor' but also on the 'Personal Guarantor'." 5. The case of the Appellant and the Respondents being covered by the aforesaid decision, no further order is required to be passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
