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2022 (8) TMI 478 - HC - Insolvency and BankruptcyCIRP - Recovery proceedings initiated by the bank under SARFAESI Act - petitioner stood as a guarantor to a loan facility - resolution plan qua the borrower was approved under Section 31 of the under the Insolvency and Bankruptcy Code, 2016 - Parallel proceedings or not - SARFAESI action has been initiated with the sole intent to recover amounts in excess of the resolution plan - vires of approval order of the NCLT or not - HELD THAT:- The law relating to maintainability of a writ petition in matters relating to SARFAESI Act is no longer res integra. The Supreme Court in Phoenix ARC Pvt. Ltd. v. Vishwa Bharti Vidya Mandir and Ors. [2022 (1) TMI 503 - SUPREME COURT], has held that where proceedings are initiated under the SARFAESI Act, and the borrower is aggrieved by any of the actions of the bank for which the borrower has remedy under the SARFAESI Act, no writ petition should be entertained. Whether the proceedings are in derogation of the Approval Order of the NCLT - availability of other remedy available - HELD THAT:- The issue is settled by Supreme Court in Lalit Kumar Jain v. Union of India [2021 (5) TMI 743 - SUPREME COURT], where the Supreme Court has, in very clear terms, held that discharge of the corporate debtor from a debt owed by it to its creditors, by way of an involuntary process such as insolvency proceedings, does not absolve the guarantor of its liability since it arises out of an independent contract. Thus, the passing of a resolution plan does not ipso facto discharge the personal guarantor. Non-implementation of the resolution plan - HELD THAT:- The aggrieved party is actually Respondent No. 1, who has not been paid in terms of the resolution plan approved by NCLT. As pointed out by the counsel for Respondent No. 1, there has been a default on the part of the resolution applicant in payment of instalments, and as per the counter affidavit, 15 instalments amounting to Rs. 4,53,60,000/- remain pending. It is therefore for Respondent No. 1 to now take action for recovery of its dues from the resolution applicant, as it may deem fit, utilizing any remedy available to it under law. Respondent No. 1 certainly has the right to proceed against the collateral securities for recovery of its dues, which are independent of the resolution plan approved by the NCLT. If the resolution plan approved by the Adjudicating Authority is contravened by the concerned corporate debtor, any person other than the corporate debtor, whose interests are prejudicially affected, may make an application to the Adjudicating Authority for an order for liquidation. Where a resolution applicant succeeds as a corporate debtor, but fails to comply with its assurance in terms of the resolution plan, then subsequent step to be taken has been specified in Section 33(3) of the IBC - Petitioner’s grievance regarding non-implementation of the resolution plan, too, cannot be a ground for this Court to entertain the instant petition. There are no merits in the petition - petition dismissed.
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