9911796707
TMI Blog2021 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... r directing the Respondents herein to handover the physical possession of the mortgaged leasehold land of the Corporate Debtor (both Express Lease & Implied Lease lands used by the Corporate Debtor) into the Liquidation Estate of the Corporate Debtor; (b) To pass an order directing the Applicant to add the mortgaged land (Express Lease-100.16 Ares & Implied Lease- 78.45 Ares) into the Liquidation Estate of the Corporate Debtor: 2. The facts in brief are as under: - The application for CIRP was filed by the Financial Creditor M/s. Union Bank of India under Section 7 of the IBC, 2016 and the same was admitted by the NCLT, Chennai Bench, vide its Order dated 20.03.2019 in IBA/240/2019. 3. The Applicant submitted that he has issued the Public Announcement in Form- B dated 12.02.2020 for invitation of claims from the stakeholders and filed the Asset Memorandum and Preliminary Report under Regulations 5 & 34 of IBBI (Liquidation Process) Regulation, 2016 and Regulation 5 &13 of IBBI (Liquidation Process) Regulation, 2016 on 24.02.2020.The Applicant was appointed as Liquidator of the Corporate Debtor vide order dated 17.01.2020 to carry out the Liquidation Process of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realize better value for all the stakeholders interested therein. Currently the above said lease land is under possession of the Respondent No.1 and 2 under SARFAESI Act. Considering this fact, the Applicant has filed this application against the Respondents seeking directions to surrender the possession of the land into the liquidation estate, so as to ensure better realizable value for the entire asset to the stakeholders interested. It is also stated that once the lease is given for 99 years, it will be treated like permanent lease and all the usage rights were transferred to the Corporate Debtor so no prejudice will be caused if this application is allowed. Even if the sale as a going concern fails, the Applicant has to sell the land and building together through E-Auction sale or as per the Act as the land and building cannot be sold separately being the building is constructed above the mortgaged land. 6,. The Applicant stated that the above action cannot be carried out unless the Respondents relinquish their interest under Section 52 of the Code in the mortgaged land and allow the Liquidator/Applicant to add the mortgaged assets into the liquidation estate of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present application seeking the surrender of properties of the personal guarantor to the Liquidation Estate. They have further stated that the owners of the property (personal guarantors) are the necessary parties to this application, particularly when seeking prayers against their property. Hence the present application is bad for non-joinder of necessary parties. 11. The 2nd Respondent further stated that present application seeking the release of personal guarantors' property proceedings against the Corporate Debtor is against the scheme of the Insolvency and Bankruptcy Code, 2016 and in suppression of the 2nd Respondent's right to enforce the security interest upon the said properties under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI) and allied procedures. It is also stated that the 2nd Respondent after expiry of the moratorium period granted in the Corporate Insolvency Resolution, initiated proceedings under SARFAESI Act on 29.12.2019, against the properties of the personal guarantors as per the procedure established therein. Thereafter on 20.02.2020 this respondent as a secured financial creditor ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected to Liquidation, I had gone through the decision referred to by the Applicant in the case of Punjab National Bank Vs. Vindhya Vasini Industries Limited (M.A. 44 of 2018 in C.P. (IB)-1170 (MB)/2017) in which it is stated as under: - 6. This decision is taken on the basis of one of the Sections as prescribed under the I&B Code i.e., Section 60(2) which prescribes that where a Corporate Insolvency Resolution Process or Liquidation Process of a Corporate Debtor is pending before NCLT, an Application relating to the Insolvency Resolution or Bankruptcy of a "Personal Guarantor" of such "Corporate Debtor" shall be filed before such NCLT. A clarification can also be inserted at this juncture that the Resolution Process is distinct from Liquidation Process. There may or may not be restrictions on the assets of a Guarantor in the event Resolution Process is commenced but right now the proceedings for Liquidation has been commenced. As a result, the assets of the Guarantor can be subjected to Liquidation by invoking the jurisdiction prescribed u/s 60(2) of The Code. 17. In Paragraph 11 of the counter affidavit filed by the 2nd Respondent it is stated that: - "this respondent hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Corporate Debtor. The Financial Creditor invoked its right against under SARFAESI against the Personal Guarantor under Section 13(2). The notice was challenged by the Corporate Debtor before Hon'ble High Court of Madras and was dismissed by the Hon'ble Court. Having failed to get relief from the Hon'ble Court, the Corporate Debtor proceeded with application under Section 10 of the IBC, 2016. The said application was admitted and moratorium was declared for the Corporate Debtor. However, the Financial Creditor continued taking measures under SARFAESI against the Financial Creditor, for stay proceeding under SARFAESI. The Chennai Bench allowed the application and restrained the Financial Creditor from proceedings against the personal guarantor till moratorium continues. This order was challenged by the Financial Creditor before the NCLAT. 22. After analysing the contention of both the parties, the Hon'ble NCLAT held that the 'Moratorium' will not only be applicable to the property of the 'Corporate Debtor' but also on the Personal Guarantor'. 23. A Surety's liability to pay the debt is not removed by reason of the Creditor's omission to sue the Principal Debtor. The Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
