TMI Blog2023 (2) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... Personal Guarantors who are unable to file an application due to enforcement of moratorium under Section 96 can very well avail the benefit of period during which moratorium continues, hence, due to interim moratorium enforced by Section 96, the creditors like Central Bank of India and other creditors are in no manner prejudiced. If they have not filed any application during moratorium period, they have every right to file application and for computation of the period of limitation, period during which moratorium is in place is to be excluded - Section 179 of the Code deals with individuals and partnership firms where similar provision has been made under Section 179 Sub-Section (3) giving benefit in computing the limitation for a suit or application in which period during which moratorium is in place is to be excluded. In view of the commencement of interim moratorium as per order dated 21.06.2021, as noticed above, the application filed by the Central Bank of India under Section 95 on 12.10.2021 could not have been proceeded with by passing the order dated 13.06.2022 - Appeal allowed. - Company Appeal (AT) (Insolvency) No. 923 of 2022 - - - Dated:- 7-2-2023 - [ Justice Ash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nders. As noted above, the State Bank of India has already filed an application under Section95 against the Appellant as a Personal Guarantor in which application - CP (IB) No. 50(AHM)2021 order dated 21.06.2021 has been passed by the Adjudicating Authority directing for commencement of interim moratorium and appointing Mr. Sunil Kumar Agrawal as Resolution Professional. 3. Shri Shikhil Suri, learned counsel for the Appellant in support of the Appeal challenging the order impugned contends that when Resolution Professional was already appointed in application by the State Bank of India, there can be no second Resolution Professional appointed, as has been done by the impugned order dated 13.06.2022. Learned counsel for the Appellant further contends that by virtue of order dated 21.06.2021 interim moratorium has commenced, hence, application could not have been filed by the Central Bank of India under Section 95 on 12.10.2021. The proceedings initiated by the Central Bank of India under Section95 was required to be stayed by virtue of the interim moratorium. The Adjudicating Authority has committed error in calling for report from the Resolution Professional. 4. Shri Ravi Rag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for further consideration on 23.08.2021. 8. The order which is impugned in the present Appeal dated 13.06.2022 is to the following effect: ORDER We direct the Resolution Professional to file the report within two weeks by giving a copy to the other side. The matter stands adjourned to 16.08.2022. 9. Learned counsel for the Bank has submitted that by order impugned dated 13.06.2022 a new Resolution Professional has not been appointed rather the same Resolution Professional Mr. Sunil Kumar Agrawal who was appointed in CP (IB) No. 50(AHM)2021 has been directed to submit the report. In the reply filed on behalf of the Central Bank of India it has been clearly stated that the Bank through their Advocate informed Shri Sunil Kumar Agrawal regarding the order dated 29.06.2022 passed by the Adjudicating Authority directing the Resolution Professional to file report. We proceed on the premise that by the impugned order dated 13.06.2022 no new Resolution Professional has been appointed and the same Resolution Professional who was appointed on the application of State Bank of India has been directed to file report. 10. The question which has been pressed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified by the Central Government in consultation with any financial sector regulator. 14. As noted above, by order dated 21.06.2021, interim moratorium was commenced from the date of application. Section 96(1)(a) provides that an interim-moratorium shall commence on the date of the application in relation to all the debts. Further, Section 96(1)(b) provides that during the moratorium period (i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. The use of expression creditors of the debtor obviously refers to other creditors of the debtor apart from the creditor on whose application interim moratorium has commenced. In the present case, the date on which application was filed by the Central Bank of India under Section 95 is 12.04.2021 i.e. after the commencement of the interim moratorium, as noted in the order dated 21.06.2021. The interim moratorium under Section 96 (1)(b)(ii) creates a prohibition on the creditors of the debtor from initiating any legal action in respect of any debt. The use of expression any debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons. (1) The Adjudicating Authority, in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the corporate persons located. (2) Without prejudice to sub-section (1) and notwithstanding anything to the contrary contained in 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 1[liquidation or bankruptcy of a corporate guarantor or personal guarantor, as the case may be, of such corporate debtor] shall be filed before such National Company Law Tribunal. (3) An insolvency resolution process or 2[liquidation or bankruptcy proceeding of a corporate guarantor or personal guarantor, as the case may be, 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. (4) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and on behalf of a debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded. 17. Section 60 Sub-section (1) provides that Adjudicating Authority in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal. Reliance is placed on Sub-Section (6) of Section 60 and counsel for the Bank submitted that the said benefit extended by Sub-Section (6) of Section 60 is only available to the Corporate Person and shall not be extended to the Personal Guarantors. Sub-Section (6) of Section 60 has to be read in conjunction with Section 60 Sub-Section (1). When Section 60 Sub-Section (1) refers to corporate persons including corporate debtor and personal guarantors, proceedings in which the benefit of Section 60 Sub-Section (6) has to be extended are insolvency resolution proceedings against the Personal Guarantors also. Submission of learned counsel for the Bank that benefit of Section (60) Sub-Section (6) shall not be extended to the creditors of the Personal Guarantors cannot be accepted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and the Adjudicating Authority adjourned the matter sine die with liberty to the applicant to revive the application on the basis of outcome of the proceedings already commenced. Following order was passed on 10.06.2022: ORDER Learned Counsel Mr. Maulik Nanavati for the personal guarantor states that against the said personal guarantor Mr. Nikhil Gandhi, an order of moratorium is already in existence passed by the Coordinate Bench on 21.06.2021, hence, the order passed by this Bench on 08.04.2022 cannot survive. We adjourn the matter sine- die with the liberty to the applicant to revive for appropriate directions, based on outcome of the proceedings before the Coordinate Bench. 21. It is case of the Appellant that both Mr. Bhavesh Gandhi (Appellant in present appeal) and Mr. Nikhil Gandhi are Personal Guarantors of the same Corporate Debtor and in the similar situation with Mr. Nikhil Gandhi when it was pointed out to the Adjudicating Authority that interim moratorium has been commenced by order dated 21.06.2021, proceedings were adjourned sine die. The order passed by the Adjudicating Authority in the case of Mr. Nikhil Gandhi dated 10.06.2022 clearly contem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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