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Mr. Ankit Miglani vs. State Bank Of India - (NATIONAL COMPANY LAW APPELLATE TRIBUNAL) (19 Apr 2023)

Application against the personal guarantor has to be filed before the Adjudicating Authority under whose jurisdiction, registered office of the Corporate Debtor is situated

MANU/NL/0356/2023

Insolvency

Present Appeal has been filed by the Appellant challenging order passed by National Company Law Tribunal, by which on an Application under Section 95 sub-section (1) of the Insolvency and Bankruptcy Code, 2016 (IBC) filed by State bank of India (Respondent), the Adjudicating Authority has declared commencement of moratorium under Section 96(1)(a) of the IBC and has appointed an Insolvency Resolution Professional ("IRP") as Resolution Professional ("RP"). The Appellant, a personal guarantor of Corporate Debtor, Uttam Galva Metallics Limited aggrieved by the said order, filed present Appeal.

Earlier CIRP, which was initiated against the Corporate Debtor in NCLT, Chandigarh Bench was transferred by order of the Principal Bench to NCLT Mumbai Bench, which CIRP was heard along with another CIRP of an associate Company pending before the NCLT Mumbai Bench, namely - Uttam Value Steels Limited. Both proceedings were completed by approving the Resolution Plan and as on date when Application under Section 95 has been filed against the Appellant, no CIRP was pending against the Corporate Debtor at NCLT Mumbai Bench. Under Section 60 sub-section (2), insolvency resolution process against the personal guarantor can be filed before the NCLT where CIRP is pending.

When no CIRP is pending in the NCLT Mumbai Bench, Section 60, sub- section (2) has no application in the present case. The facts that once upon a time CIRP against the Corporate Debtor was undertaken by the NCLT Mumbai Bench under order of transfer from the Principal Bench, will not preclude the jurisdiction of NCLT Chandigarh Bench for Application against the personal guarantor. The Application against the personal guarantor by virtue of Section 60 sub-section (1) has to be filed before the Adjudicating Authority under whose jurisdiction, registered office of the Corporate Debtor is situated. There is no dispute between the parties that registered office of the Corporate Debtor is situated in the State of Haryana and it is the NCLT Chandigarh, which has jurisdiction to consider any Application against the personal guarantor, such as Appellant.

On the date, when Section 95 Application was filed before the Adjudicating Authority, i.e., 23.06.2021, no insolvency resolution was pending against the Corporate Debtor before NCLT Mumbai. Hence, Section 60 sub-section (2) could not have been invoked. NCLT Mumbai Bench had no territorial jurisdiction to entertain Section 95 Application filed by the State Bank of India against the Appellant. The jurisdiction to entertain Section 95, sub-section (1) Application was only before the NCLT under whose jurisdiction the registered office of the Corporate Debtor is situated, which in the present case happens to be NCLT Chandigarh. The order passed by the Adjudicating Authority is set aside. Appeal allowed.

Tags : COMMENCEMENT   MORATORIUM   JURISDICTION  

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