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2023 (7) TMI 961 - BOMBAY HIGH COURTCIRP - Recovery of dues from the Guarantor, while moratorium was decelerated against the corporate debtor - Legal Steps taken by the Respondent Bank under the provision of the SARFAESI Act - Plaintiff is an MSME within the meaning of the MSMED Act of 2006 or not - applicability of notification S.O. 1432(E) dated 29.5.2015 - no opportunity of restructuring of the Principal Borrower Company and to its directors/ guarantors, provided by the Respondent No. 1 Bank. Petitioner submitted that the Borrower being an MSME should be taken care of by the Government and Special Mention Accounts and rectification, restructuring and if both the options do not work, then recovery option as last option should be used. HELD THAT:- Supreme Court in the matter of AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER VERSUS MATHEW K.C. [2018 (2) TMI 25 - SUPREME COURT] held that if statutory remedies under the DRT Act and the SARFAESI Act is available, High Court should not exercise its jurisdiction under Article 226 for passing orders. In the case of PHOENIX ARC PRIVATE LIMITED VERSUS VISHWA BHARATI VIDYA MANDIR & ORS. [2022 (1) TMI 503 - SUPREME COURT] it was held that High Court should not entertain Petition when a remedy under SARFAESI Act is available. Petitioner has already availed the benefits of Section 17, by preferring an exhaustive application by way of Securitisation Application No. 92 of 2022 before the D.R.T. On 8 May 2023, liberty was granted to the parties to file Written submissions, and matter was closed for orders. By Order dated 11.09.2019, the NCLT has declared a moratorium against the action being taken against the Borrower, including the SARFAESI proceedings. However, the Secured Asset is owned by the Petitioner/Guarantor. Therefore, as such, the Respondent No. 3 /Bank can proceed against the Mortgaged Property of Personal Guarantor as per S. 13(11) of the SARFAESI - The issue is already covered by the judgment of the Supreme Court in STATE BANK OF INDIA VERSUS V. RAMAKRISHNAN AND ANR. [2018 (8) TMI 837 - SUPREME COURT] which holds that S. 14 and S.31 of the IBC does not bar initiation and continuation of the SARFAESI proceedings against the Guarantor. As such, the bank has not violated the moratorium as ordered by the NCLT, in initiating SARFAESI Proceedings against Petitioner / Guarantor. The present proceedings cannot be entertained - This, more particularly, for the reason that the adjudication on such prayer and that too at the behest of the petitioner, is wholly academic - Petition dismissed.
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