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2022 (2) TMI 1295 - NATIONAL COMPANY LAW TRIBUNAL CUTTACKMaintainability of petition - personal guarantor under Section 60(5), IBC, 2016 - applicability of notification dated 15.11.2019 - auction proceedings initiated against the applicant - Whether this petition filed by the personal guarantor under Section 60(5), IBC, 2016, is maintainable? - HELD THAT:- The subject matter involved in the present petition has not arisen solely or exclusively from the insolvency proceedings initiated against the corporate debtor, but in a proceeding under the SARFAESI Act,2002, between the 1st respondent and personal guarantor to corporate debtor. The DRT is only the appropriate forum to determine and decide the validity of the auction proceeding initiated against the applicant by the 1st respondent financial creditor under the SARFAESI Act, 2002. Besides, in view of the caution mandated by the Hon'ble Apex court in Gujarat Urja Vikas Nigam Limited Vs. Amit Gupta supra [2021 (3) TMI 340 - SUPREME COURT], patently this Tribunal has no jurisdiction to entertain this petition - it is determined that the applicant personal guarantor herein, who is a stranger to the insolvency and bankruptcy proceedings pending between the financial creditor and corporate debtor before this Tribunal, cannot invoke section 60(5) (c), IBC, 2016, to file this present petition, which therefore is neither maintainable nor sustainable before this Tribunal. Whether the notification dated 15.11.2019 mandates that any / all proceeding /s against the personnel guarantor of corporate debtor must be initiated only under the provisions of the IBC, 2016? - HELD THAT:- The irresistible conclusion is that after the aforesaid notification S.O.4126(E) dated 15.11.2019, only if any insolvency proceeding is to be initiated against the personal guarantor of corporate debtor it must be only under IBC,2016, not under the provisions of the PTA and PIA Acts, and the said notification does not in any manner whatsoever prohibit the financial creditor to proceed against the person al guarantor of corporate debtor by instituting recovery proceedings permissible under any other existing and applicable law. Whether the auction proceedings initiated against the applicant is liable to be quashed? - HELD THAT:- The respondent/financial creditor has initiated auction proceeding against the immoveable property of the applicant under the provisions of the SARFAESI Act, 2002. The Apex court in V. Ramakrishnan case supra has categorically held that proceedings under the SARFAESI Act are not proceedings under the IBC, 2016. Hence, there is no bar to continue the SARFAESI proceeding initiated by the respondent against the applicant and the said proceeding need not to be quashed. Application dismissed.
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