2025 (12) TMI 1256 - AT - IBC

Insolvency action against personal guarantor after loan default-Section 14 CIRP moratorium and Section 10A defences rejected

Section 14 moratorium arising from commencement of CIRP against the principal borrower did not bar initiation of insolvency proceedings under s.95 IBC ... Admission of Section 95 application filed by a financial creditor against the appellants - CIRP process having already commenced against the corporate debtor on 28.02.2020, loan recall notice dated 23.03.2020 was hit by Section 14 of the IBC or not - relevant date of default under Section 10A. Whether CIRP process having already commenced against the corporate debtor on 28.02.2020, loan recall notice dated 23.03.2020 was hit by Section 14 of the IBC? - HELD THAT:- There cannot be any dispute that after initiation of CIRP, any recovery of amount from corporate debtor is prohibited. But the present is the case, where notice of default was issued to the corporate debtor in the year 2019 and initiation of CIRP against the corporate debtor and the moratorium under Section 14 of the IBC does not preclude the financial creditor to initiate action under Section 95 against the personal guarantor. The personal guarantee issued by personal guarantor was invoked by notice dated 14.03.2022, thus invocation against the personal guarantor have taken place on 14.03.2022, the same was well within jurisdiction of the financial creditor and cannot be said to hit by moratorium under Section 14 - there are no substance in the submission of the appellant that proceeding under Section 95 are in any manner hit by Section 14 of the IBC. Relevant date of default under Section 10A - HELD THAT:- The present is a case, where invocation of guarantee took place on 14.03.2022. In any view of the matter, Section 10A prohibits filing of application under Sections 7, 9 & 10 of the IBC and provisions of Section 10A does not in any manner bar proceedings against the personal guarantor under Part III of the IBC - this Tribunal has rejected the submission raised on behalf of the personal guarantor that application against the personal guarantor cannot be initiated if default is committed during 10A period - there are no substance in the submission of the appellant that proceeding under Section 95 were inhibited by virtue of Section 10A. In any view of the matter, even as per the case of the appellant, there is no liquidation of the entire admitted amount of the corporate debtor as on date and dues of more than Rs. 1 crore is still pending, hence without entering into the issue regarding the quantum of the amount the quantum being more than Rs. 1 crore, there are no error in the admission of Section 95 application. Thus, no grounds are made out to interfere with the order admitting Section 95 application against the appellants - there are no error in the order admitting Section 95 application - appeal dismissed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether initiation/admission of a creditor's application under Section 95 against personal guarantors is barred by the moratorium under Section 14 operating in the corporate debtor's CIRP. (ii) Whether Section 10A (suspension of initiation of insolvency proceedings for specified COVID-period defaults) bars proceedings under Section 95 against personal guarantors. (iii) Whether the application under Section 95 was liable to be rejected at the admission stage due to dispute/alleged misdeclaration regarding the quantum of debt (including differences between amounts demanded from guarantors and amounts admitted in the corporate debtor's CIRP, and alleged recoveries from co-guarantors), when default above the statutory threshold was undisputed. (iv) Whether the objections of the personal guarantors and the Resolution Professional's report under Section 99 were not considered in substance so as to vitiate the admission of the Section 95 application. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Section 14 moratorium in corporate debtor's CIRP as a bar to Section 95 proceedings against personal guarantors Legal framework: The Court examined the effect of moratorium under Section 14 in relation to proceedings against a personal guarantor, and the permissibility of creditor action against the guarantor notwithstanding CIRP of the principal borrower. Interpretation and reasoning: The Court noted that although initiation of CIRP results in a moratorium restricting recovery from the corporate debtor, the creditor's action in the present case was against the personal guarantors. The Court emphasised that the personal guarantees were invoked by a notice dated 14.03.2022, and that such invocation and the consequential Section 95 action were not precluded merely because CIRP of the corporate debtor had commenced earlier. The Court treated the moratorium as not operating to bar proceedings against the personal guarantor in this context. Conclusion: Section 14 moratorium in the corporate debtor's CIRP did not bar initiation/admission of Section 95 proceedings against the personal guarantors; the challenge on this ground was rejected. Issue (ii): Applicability of Section 10A to Section 95 proceedings against personal guarantors Legal framework: The Court considered Section 10A and its statutory scope, and whether it extends to proceedings under Part III (including Section 95) against personal guarantors. Interpretation and reasoning: The Court held that Section 10A suspends filing of applications under Sections 7, 9 and 10, and does not bar proceedings under Section 95. The Court accepted the respondent's submission that Section 10A does not apply to personal guarantor proceedings under Part III, and relied on the Tribunal's earlier reasoning (as adopted in the judgment) that the legislative scheme did not insert a corresponding bar in Part III. The Court further noted that, in the present case, the guarantee invocation occurred on 14.03.2022, reinforcing that the Section 95 process was not inhibited by Section 10A. Conclusion: Section 10A did not bar Section 95 proceedings against the personal guarantors; the objection based on Section 10A was rejected. Issue (iii): Effect of dispute on quantum of debt/recoveries from co-guarantors on admission of Section 95 application Legal framework: The Court focused on whether, at the admission stage under Section 95, the proceeding could be refused due to disputes on the precise debt computation when default above the statutory threshold was admitted. The Court also considered the Adjudicating Authority's approach that exact computation could be addressed in the repayment plan stage. Interpretation and reasoning: The Court acknowledged the appellant's argument that the creditor demanded higher sums from the guarantors than the amount admitted in the corporate debtor's CIRP, and that payments had allegedly been made by co-guarantors. The Court noted that the creditor's larger claim in the corporate debtor's CIRP had been partly rejected by the RP and was under challenge in a pending application, so the admitted amount in CIRP could not be treated as conclusively capping the creditor's asserted debt for all purposes. Crucially, the Court found that, even assuming (for argument) that the lower admitted amount was the relevant debt, the appellants did not establish full repayment; even on their own assertions, more than the threshold amount remained unpaid. The Court accepted the Adjudicating Authority's approach that differences in calculation could be addressed in the repayment plan process, while admission required that default above the threshold be present, which was undisputed. Conclusion: Dispute on exact quantum, including alleged co-guarantor recoveries, did not warrant rejection of the Section 95 application at admission where default exceeding the threshold (Rs. 1 crore) was admitted and full discharge was not proved; admission was upheld. Issue (iv): Alleged non-consideration of personal guarantors' objections and inadequacy of Section 99 report Legal framework: The Court assessed whether the decision-making process was vitiated on the ground that objections were not considered and that the Section 99 report was not prepared with due examination. Interpretation and reasoning: The Court held that the Adjudicating Authority had in fact noted the personal guarantors' objections in the impugned order and considered the Resolution Professional's report recommending admission. The Adjudicating Authority recorded a finding that it was not the personal guarantors' case that the debt had been repaid, and treated the dispute on computation as an issue capable of being addressed through the repayment plan. The Court found no procedural or substantive infirmity in the treatment of objections or reliance on the report that would justify appellate interference with admission. Conclusion: The Court found that objections were considered and the Section 99 recommendation was accepted on adequate grounds; no vitiating non-consideration was established, and admission was affirmed.