2022 (6) TMI 10

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....a, Member (T) ] 1. This Appeal has been preferred against the Impugned Order dated 15/02/2022 passed by the Learned Adjudicating Authority (National Company Law Tribunal New Delhi, Bench - III) in (IB)-87(ND)/2022, declaring an Interim Moratorium in terms of Section 96 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as 'The Code'). The Appellant is the Personal Guarantor of M/s. ANG Companies Ltd. which is currently undergoing Liquidation. 2. It is the case of the Appellant Counsel that when the process of Liquidation of the 'Corporate Debtor' was underway, the Appellant had received summons dated 15/10/2020 issued by the DRT Tribunal, Delhi filed by the Respondent Bank for recovery of a sum of Rs.55,54,37,926/- ....

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....ion 95(1) of the Code. It is strenuously argued that in accordance with Section 60 (2) of the Code the said Application could only be heard by Bench No. VI of the NCLT, as the Liquidation Proceedings of the 'Corporate Debtor' were pending before that Bench. 5. Learned Counsel for the Appellant placed reliance on these two Judgements in support of his case: * 'AGI Logistics INC & Anr. Vs. Mr. Sher Jang Bhadur & Anr.', CS(OS) 1314/2009. * 'Neeraj Jain Vs. Cloudwalker Streaming Technologies Private Limited and Ors.', Company Appeal (AT) (Insolvency) No. 1354 of 2019. 6. It is the case of the Respondent Bank that the Appellant was served with the complete set of the Application under Section 95 of the Code on 12/01/2022 ....

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....tate Bank of India', Company Appeal (AT) (Ins) No. 316 of 2021 held that a 'Corporate Debtor' is entitled for limited Notice by the Adjudicating Authority so that the Personal Guarantor is aware of the Proceedings. The relevant paras are reproduced as hereunder: "24. Section 95(5) requires the Creditor to provide copy of the application under sub-section (1) to the Debtor. This section needs to be read with Rule 3(1)(g) reproduced above. It is evident from reading the Section alongwith the Rule that what Creditor has to serve is copy of the application "made under sub-section (1)" to the Debtor. Reading Rule 7(2) with Rule 3 shows that the application filed under sub-section (1) of Section 95 shall be submitted in "Form C‟ an....

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....ecided by giving hearing to parties keeping in view Application, evidence collected and report under Section 99." 10. It is the main case of the Appellant that the limited Notice contemplated under Section 95(1) of the Code was never served upon them. The material on record shows that the Personal Guarantor was represented on that date and therefore it cannot be said that the Appellant was not aware of the proceedings. The object behind the issuance of the limited Notice to the Personal Guarantor is to appear before the Adjudicating Authority following the Principle of Natural Justice. The documentary evidence on record establishes that the Demand Notice dated 06/10/2021 was received by the Appellant on 12/10/2021. It is the contention o....