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TMI Blog2024 (11) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Celir LLP v. Bafna Motors (Mumbai) Pvt. Ltd and Ors. [ 2023 (10) TMI 48 - SUPREME COURT ], is binding on the right of redemption to the borrower requiring thirty days clear notice in terms of Section 13 (8) of the SARFAESI Act read with Rule 8 (6) of the Rules of 2002 and the publication of sale notice under Rule 9 (1) is an issue that must be addressed before the learned DRT. Likewise, whether the subject property/mortgaged property is agriculture in nature and thus exempted from the dragnet of the SARFAESI Act in terms of section 31 (i) is a plea that too be addressed before the learned DRT. There is some merit in the plea of the learned senior counsel for the petitioner that the decision in the case of Lalit Kumar Jain v. Union of India [ 2021 (5) TMI 743 - SUPREME COURT ] was one wherein it was held that the approval of the resolution plan under Section 31 of the IBC would not automatically discharge a guarantor from his obligations, and yet at the same time, in view of the fact that the resolution plan has been accepted by the NCLT vide vide judgment dated 11.06.2024, the issue that arises for consideration is since the entire debt of the borrower has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which properties are claimed to be agricultural properties bearing different khasra numbers and measurements, owned by the respective petitioners. Evidently, the account became NPA [Non-Performing Asset] and accordingly, proceedings were initiated by the respondent no. 1/IOB under the SARFAESI Act [Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act]. 6. In the meanwhile, the Corporate Debtor was subject to proceedings under the IBC [Insolvency and Bankruptcy Code, 2016] before the NCLT [National Company Law Tribunal] . It is a matter of record that the NCLT in such proceedings [I.A/1334/ND/2023A/WI.A/5241/ND/2023 in CP IB-190/PB/20107] vide judgment dated 11.06.2024 accepted a resolution plan by the Resolution Applicant after due approval of the CoC [Committee of Creditors] , of which the respondent no. 1/IOB was also a signatory. As per the resolution plan approved by the learned NCLT, Delhi, the following dispositions have been provided for:- The Admitted Financial Debt (reduced by the share of the Upfront Payment to the financial Creditors received by the Financial Creditors) shall be restructured in the following manner: a. A sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider) in relation to its subsidiaries or joint ventures, if any, without the requirement of any further action on part of any Person and the Corporate Debtor or Resolution Applicant or the SPC. 13.2.5 As on the Effective Date, the Assenting Financial Creditors shall not be entitled to take, initiate or continue any steps or proceedings against the Corporate Debtor and its joint ventures or its assets whether by way of demand, legal proceedings, alternative determination process (including arbitration or an expert determination process), the levying of distress, in any jurisdiction whatsoever for the purpose of obtaining payment of any liability for obtaining payment, or for the purpose of placing the Corporate Debtor and its joint ventures into liquidation or any analogous proceedings. This shall be without prejudice to the rights of the Assenting Financial Creditors in relation to the terms of the repayment as proposed in this Resolution Plan. 13.2.6 As on the Effective Date, any and all legal proceedings initiated before any forum by or on behalf of the Assenting Financial Creditors, to enforce any rights or claims against the Corporate Debtor or its joint ventures or enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now the sale proclamation has been issued for sale of the mortgaged property, which is an agriculture property, in complete derogation of Section 31 (i) of the SARFAESI Act. 11. Learned senior counsel for the petitioner has alluded to the decision by the Gujarat High Court in the case of Prashant Shashi Ruia v. State Bank of India MANU/GJ/2177/2021 dated 16.12.2021, whereby it has been held that once the claim gets settled by the corporate debtor, there is no independent right of action available to the secured creditor to proceed independently against the guarantor. 12. However, learned counsel for the respondent no. 1/IOB vehemently urged that the present writ petitions are not maintainable and the appropriate remedy for the petitioner is to approach the learned DRT, Delhi and raise appropriate objections and he has alluded to orders dated 20.10.2023, 13.09.2024 and lastly 27.09.2024 passed by the learned DRT. 13. Learned senior counsel for the petitioner submitted that they have already raised appropriate objections before the learned DRT but instead of deciding their objections, the learned DRT has heard them on their securitisation application and that the matter is fixed for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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