TMI Blog2018 (3) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... lienation or disposal of any of its assets of the ‘Corporate Debtor’ and/ or any legal right or beneficial interest therein are prohibited. Clauses (c) & (d) of sub-section (1) of Section 14 of the ‘I&B Code’ prohibits recovery or enforcement of any security interest created by the corporate debtor in respect of its property including the property occupied by it or in the possession of the ‘Corporate Debtor’. ‘Resolution Plan’ if approved by the ‘Committee of Creditors’ under sub-section (4) of Section 30 and if the same meets the requirements as referred to in sub-section (2) of Section 30 and once approved by the ‘Adjudicating Authority’ is not only binding on the ‘Corporate Debtor’, but also on its employees, members, creditors, guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 13(2) on 4th August, 2015 for recovery of ₹ 61,13,28,785.48/- from the said 1st Respondent as securities. The notice was challenged by the Corporate Debtor before the Hon ble High Court of Madras, which was dismissed with costs on 17th November, 2016. Thereafter, the State Bank of India ( Financial Creditor ) issued a Possession Notice dated 18th November, 2016 under Section 13(4) of the SARFAESI Act, 2002 and taken symbolic possession of the secured assets. 3. Having failed to get relief from Hon ble High Court of Madras, the Corporate Debtor invoked Section 10 of the I B Code which was admitted, order of Moratorium was passed and an Interim Resolution Professional was appointed. 4. Even after declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 31 of the I B Code , the Appellant- State Bank of India ( Financial Creditor ) cannot proceed even against the Personal Guarantor . 8. We have heard learned counsel for the parties and perused the record. 9. I B Code, 2016 is in three parts. Part I- Preliminary including the definitions given therein applies to both Part II- Insolvency Resolution and Liquidation for Corporate Persons and Part III- Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms . 10. As per Part II, Insolvency Resolution and Liquidation Proceedings can be initiated only against the Corporate Persons and not against an individual, including Personal Guarantor , as defined under sub-section (22) of Section 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Code, where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before a National Company Law Tribunal, an application relating to the insolvency resolution or bankruptcy of a personal guarantor of such corporate debtor shall be filed before such National Company Law Tribunal. (3) An insolvency resolution process or bankruptcy proceeding of a personal guarantor of the corporate debtor pending in any court or tribunal shall stand transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such corporate debtor. 13. Therefore, a Financial Creditor , including Appellant-State Bank of India, if intends to proceed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; ( c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; ( d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. Approval of resolution plan. ─ (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. 17. From the aforesaid provisions, it is clear that Resolution Plan if approved by the Committee of Creditors under sub-section (4) of Section 30 and if the same meets the requirements as referred to in sub-section (2) of Section 30 and once approved by the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
