TaxTMI 
TaxTMI 
2023 (2) TMI 238
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....he I&B Code was filed by Central Bank of India - Respondent dated 12.10.2021 against the Appellant - the Personal Guarantor of the Corporate Debtor namely Reliance Naval Engineering Ltd. which application came for consideration before the Adjudicating Authority on 18.04.2022. (ii) Learned counsel for the Appellant brought into notice of the Adjudicating Authority that insolvency resolution process has already been initiated against the Appellant - Personal Guarantor by order dated 21.06.2021 in C.P. (IB) 50/AHM/2021 in Court No.2. On the said statement, the Adjudicating Authority posted the matter on 13.06.2022 on which date the Adjudicating Authority passed an order directing the Resolution Professional to file a report within two weeks. Aggrieved by the said order this Appeal has been filed. 2. In this Appeal an order was passed by this Tribunal on 12.08.2022 granting time to the Appellant to file an additional affidavit bringing on record the guarantee given by the Appellant to Central Bank of India as well as the State Bank of India. By an additional affidavit copy of the Guarantee Deed dated 31.03.2015 has been brought on the record. Personal Guarantee was given by....
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....other application. The analogy with respect of Section 7 of I&B Code is not applicable in proceedings under Section 95. It is submitted that there is no pleading or ground regarding nonmaintainability of application due to interim moratorium. 5. We have considered the submissions of learned counsel for the parties and perused the record. 6. The Deed of Guarantee dated 31.03.2015 which has been brought on the record alongwith the Additional Affidavit dated 05.09.2022 indicates that the appellant has given personal guarantee to the IL&FS Trust Company Limited in its capacity as Security Trustee for the CDR Lenders. Alongwith the Guarantee Deed, in Schedule-I particulars of CDR Lenders have been mentioned in which at Serial No. 13 is Central Bank of India and at Serial No. 17 is State Bank of India. The Appellant is thus Personal Guarantor of both the CDR Lenders i.e. Central Bank of India and State Bank of India. 7. An application under Section 95 was filed by the State Bank of India being CP (IB) No.50(AHM)2021 in which following order was passed on 21.06.2021: "ORDER This application is filed under Section 95 of the Code against the Personal Guarantor. ....
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.... submission and we have also permitted learned counsel for the Bank to reply the said submission. 12. Thus, the question to be answered in present appeal is as to whether when an application is filed against the Personal Guarantor whether another Lender of same transaction can proceed against the Personal Guarantor by filing another application under Section 95 of the I&B Code. 13. For answering the above question, we need to look into the provision of I&B Code. Section 95 provides for application by creditor to commence insolvency resolution process. In the present case, the State Bank of India filed CP (IB) No. 50(AHM)2021 in which resolution process commenced by order dated 21.06.2021. Interim moratorium is provided in Section 96, which is to the following effect: "96(1) When an application is filed under section 94 or section 95- (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and (b) during the interim-moratorium period- (i) any legal action or proceeding pending in respect of any debt shall be deemed to hav....
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....under Section 101 and thereafter public notice is issued and claims from creditors are invited under Section 102. Section 103 provides for registering of claims by creditors. Section 104 provides for preparation list of creditors and thereafter repayment plan is contemplated under Section 105. Thus, when an insolvency resolution process commences against the Personal Guarantor all creditors of the Personal Guarantor are taken care of in the proceedings under Chapter-III. The scheme of Code does not contemplate manifold applications against same Personal Guarantor by different lenders. Multiplicity of applications against same Personal Guarantor is not contemplated under Chapter III. When the insolvency resolution process commences against a Personal Guarantor, claims of all creditors are taken care of under the scheme of the Code. 16. One of the submission which has been raised by learned counsel for the Bank is that there is no benefit in the limitation for filing an application by any other creditors under Section 95 whereas when a moratorium is enforced with regard to a Corporate Debtor as well as with regard to an individual and partnership firm, there are express provision ....
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....ncy resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. (6) Notwithstanding anything contained in the Limitation Act, 1963 or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded. x x x "179. Adjudicating Authority for individuals and partnership firms - (1) Subject to the provisions of section 60, the Adjudicating Authority, in relation to insolvency matters of individuals and firms shall be the Debt Recovery Tribunal having territorial jurisdiction over the place where the individual debtor actually and voluntarily resides or carries on business or personally works for gain and can entertain an application under this Code regarding such person. (2) The Debt Recovery Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain or dispose of- (a) any suit or proceeding by or against the individ....
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....79 Sub-Section (3) giving benefit in computing the limitation for a suit or application in which period during which moratorium is in place is to be excluded. 19. Learned counsel for the Appellant has also submitted that with regard to another Personal Guarantor Mr. Nikhil Gandhi an application under Section 95 was filed by Central Bank of India on which C.P. (IB) No. 94(AHM)2022 was registered, an order was passed on 08.04.2022, which is to the following effect: "ORDER Application filed under Section 95 IBC, 2016. Learned Counsel for the Applicant states that original Corporate Debtor M/s. Reliance Naval Engineering Limited is under CIRP. Application is filed by Financial Creditor under Section 95 of the Code seeking initiation of Insolvency Resolution Process against the personal guarantor of the Corporate Debtor, namely, Surya Exim Limited. Issue notice. Learned Counsel for the applicant requests for appointing the Insolvency Professional by the Bench. Mr. Kabra Rajendrakumar Radhakishan, Registration No. IBBI/IPA- 001/IP-P02385/2021-2022/13835 is hereby appointed as Resolution Professional. Declaration with respect to no disciplinary proce....