2022 (1) TMI 1294

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.... Advocates For the Respondent: Advocate Supriyo Gole  ORDER We have heard Learned Counsel for the Appellant and Respondent in both these Appeals. With the consent of the parties, we dispose of both these Appeals at the admission stage. 2. This Appeal has been filed against the Order dated 05th October, 2021 passed by National Company Law Tribunal, Kolkata Bench, Kolkata. The State Bank of India has filed an Application under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') seeking initiation of Corporate Insolvency Resolution Process against the Guarantor. The Application came to be rejected by the Adjudicating Authority as premature by order dated 05th October, 2021. The reason ....

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....the Corporate Guarantor and Personal Guarantor can be filed before the NCLT. He submits that since in the present case, no proceedings are pending as contemplated in Section 60(2) of the Code the Application has rightly been rejected by NCLT as premature. 5. We have considered the submissions of the Learned Counsel for the parties and perused the record. 6. Section 60 (1) & (2) which falls for consideration in the present case is as follows: "Section 60: Adjudicating Authority for corporate persons. *60. (1) The Adjudicating Authority, in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal having....

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....ing of proceedings under Section 95 of the Code even if no proceeding are pending before NCLT. 8. The use of words 'a' and 'such' before National Company Law Tribunal clearly indicates that Section 60(2) was applicable only when a CIRP or Liquidation Proceeding of a Corporate Debtor is pending before NCLT. The object is that when a CIRP or Liquidation Proceeding of a Corporate Debtor is pending before 'a' NCLT the application relating to Insolvency Process of a Corporate Guarantor or Personal Guarantor should be filed before the same NCLT. This was to avoid two different NCLT to take up CIRP of Corporate Guarantor. Section 60(2) is applicable only when CIRP or Liquidation Proceeding of a Corporate Debtor is pending, when CIRP or Liquidat....