TMI Blog2017 (8) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... nal guarantor required to be filed before the same Bench of Adjudicating. Authority, meaning thereby, separate application for initiation of resolution process require to be filed against the guarantor before the same very Bench of the Adjudicating Authority who is hearing the corporate resolution process or liquidation proceeding against principal corporate debtor. Sub-section (3) of Section 60 further makes it clear that if an insolvency resolution process or bankruptcy proceeding of a personal guarantor of the corporate debtor is pending before any other court of law or Tribunal, such as Debt Recovery Tribunal , who is the Adjudicating Authority for the purpose of Part-III- Insolvency Resolution and Bankruptcy for Individuals and Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moter) has been attached pursuant to Corporate Resolution Process initiated under section 10 against the Appellant-Corporate Applicant. However, such statement has been disputed by the Ld. Counsel appearing on behalf of 1St Respondent/ 'Financial Creditor'. 3. From the impugned order, we find that the Ld. Adjudicating Authority noticed the provision relating to Moratorium (Sec. 14) and clarified as to which property is to be attached, as apparent from the observations and finding as quoted below: 8.1. On careful reading I have noticed that the term its is significant. The plain language of the Section is that on the commencement of the Insolvency process the 'Moratorium' shall be declared for prohibiting any action t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor. The Moratorium has no application on the properties beyond the ownership of the Corporate Debtor. As a result, the Order of the Hon'ble Court directing the Court Commissioner to take over the possession shall not fall within the clutches of Moratorium. Even otherwise, the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (the SARFAESI Act) may be having different criteria for enforcement of recovery of outstanding debt, which is not the subject matter of this Bench. Before I part with it is necessary to clarify my humble view that The SARFAESI Act may come within the ambits of Moratorium if an action is to foreclose or to recover or to create any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity Interest Act, 2002 (SARFAESI). 5. However, we are not inclined to accept such submissions as Appellant-Corporate Applicant has sought for its own insolvency resolution process that will include only the assets of the Corporate Debtor and not any assets, movable or immovable of a third party, like any director or other. In so far as 'guarantor' is concerned, we are not expressing any opinion, as they come within the meaning of 'Corporate Debtor individually', as distinct from principal debtor who has taken a loan. 6. In the aforesaid background, if Ld. Adjudicating Authority, on careful reading of the provisions has come to the definite conclusion that on commencement of the insolvency process the Moratorium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be vested with all the powers of the Debt Recovery Tribunal as contemplated under Part III of this Code for the purpose of sub-section (2). (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by oraAgainst any Of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividuals and Partnership Firms all those proceeding shall also stand transferred to the Adjudicating Authority, dealing with insolvency resolution process or liquidation proceeding of the Corporate Debtor. 8. Sub-section (5) of Section 60 further makes it clear that the Adjudicating Authority has jurisdiction to entertain and dispose of an application or proceeding by or against the Corporate Debtor or corporate person including any claim made by or against the Corporate Debtor or Corporate person, including claims by or against any of its subsidiaries situated in India. 9. In view of the observations made above, the impugned order having passed by Ld. Adjudicating Authority in accordance with law, we reject the prayer. The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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