TMI Blog2020 (9) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.09.2018. The outcome of the appeal in NCLAT was crucial because the petitioner / appellant had wanted further extension of time. Moreover, the financial creditor, State Bank of India did not proceed against the personal guarantor separately. It was only by way of the securitization notice dated 13.02.2019 issued to the Corporate Debtor with copies to all the guarantors. The prayer in the WP.No.31140 of 2019 is filed for writ of mandamus directing the Insolvency and Bankruptcy Board of India to dispose of the complaint dated 23.01.2019 submitted by the petitioner to them in 'Form A' against the orders in NCLT in MA/498/2018 and MA/460/2018 in CP/666/IB/2017. Mr.M.L.Ganesh, learned counsel appearing for the 7th respondent / State Bank of India, contended that the writ petition itself has become infructuous since the 4th respondent had already considered the complaint dated 09.01.2019 (and not 23.01.2019 as mentioned in the writ petition) and the same has been closed after verification of records submitted by the IRP / RP. He would further contend that the 4th respondent had also directed the RP to follow the liquidation rules. This writ petition is also infructuous for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following reliefs. a) Exclude 120 days of the CIRP Process from the date of commencement of the CIRP viz., 29.12.2017 and direct the continuation of the CIRP Process for a further period of 120 days; b) Set aside the decision of the COC dated 26.07.2018 whereby the Applicant No.1 was held disqualified under Section 29A (g); c) Set aside the decision of the COC dated 18.09.2018 whereby the Applicant No.2 was held disqualified under Section 29A (g); d) Consequent to the above, direct the Resolution Professional and COC to consider the Resolution Plan submitted by these applicants jointly and severally afresh without being influenced by their previous biased decisions; e) Declare the decision of the 2nd respondent to treat the Corporate Debtor as an NPA on 26.03.2018 as being illegal; f) Such other orders in the interests of justice. But the petition was dismissed. One of the important reliefs sought was to declare the decision of the State Bank of India to treat the Corporate Debtor as Non-Performing Asset on 26.03.2018 as illegal. Another plea to exclude the period of alleged delay (120 days) on the part of Interim Resolution Professional from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals with NCLAT were pending was totally illegal and against the basic tenets of Insolvency and Bankruptcy Code, 2016. (c) The pendency of the complaint by the Managing Director of the Corporate Debtor under Sub Regulation (3) of Regulation (3) of the Insolvency and Bankruptcy Board of India (Grievance and Complaint Handling Procedure) Regulation 2017 was not considered by the NCLAT while dismissing the appeal. (d) Notwithstanding the aforesaid submissions, the financial creditor is restricted by the moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016. 5. The learned counsel further relied on the decision in Union of India vs. Infrastructure Leasing and Financial Services Ltd. and others decided by NCLAT, New Delhi in which it was held that Non Performing Asset relates to an Asset, i.e., loan or advance which becomes non-performing when it ceases to generate income for the Bank. Thus, it relates to the Banks and we are satisfied that declaration of Non Performing Asset by the Bank in no manner will affect the Corporate Debtor to continue as a going concern . 6. The learned counsels for the respondent bank, State Bank of India, M/s. M.L. Ganesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether creditors can independently proceed against the guarantor. The Hon'ble Apex Court had laid to rest this argument about whether the moratorium on the Corporate Debtor will apply to the guarantor or not. It has categorically held that moratorium does not apply to the personal guarantor. However, unlike in most of the cases, in the instant case, the guarantor is not directly involved in the management of the company. She is a third party. It is also observed in the instant case that the securitization notice under Section 13 (2) is dated 13.02.2019 and is not an independent notice. It is not only for the guarantors property when the appeal of the company under NCLAT was pending, but for all the properties taken as collateral securities for the credit facilities to the corporate Debtor. The final order of the NCLAT is dated 25.02.2019 and this in fact marked the culmination of the proceedings under the Insolvency and Bankruptcy Code, 2016, though technically speaking the CIRP was over on 24.09.2018. The outcome of the appeal in NCLAT was crucial because the petitioner / appellant had wanted further extension of time. Moreover, the financial creditor, State Bank of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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