K. Anantha Padmanabha Swamy, Member (J):— All the petitions have been filed by the applicant/financial creditor/State Bank of India for recovery of the financial credit extended to the Corporate Debtor Brilliant Alloys Private Limited vide order No. CP/582/(IB)/CB/2017 dt. 28.09.2017 the moratorium under Sec. 14 of the IBC 2016 was declared and Shri Martin S.K. Golla was appointed as an Interim Resolution Professionals and in the meantime the financial creditor has sought to move this Tribunal under Section 60(2) of the IBC to initiate the insolvency proceedings against the personal guarantors to the corporate debtor with respect the guarantee for the loan which was extended for the financial creditor vide loan agreement dated 05.03.2012 for the following financial credit together with applicable interest thereon.
Sl. No. Facility Limit Fund Based Limits (Rs. in lacs) a Term Loan 1275.00 b Cash Credit 1200.00 Total of Fund Based Limits 2475.00
In similar circumstances, the Hon'ble High Court of Allahabad has held that
IN THE HIGH COURT OF ALLAHABAD
Writ - C Nos. 30285 and 30033 of 2017
Decided On: 06.09.2017
Appellants: Sanjeev Shriya.
Versus
Respondent: State Bank of India.
Sanjeev Shriya v. State Bank of India.
(06.09.2017 - ALLHC):
The operative portion of Hon'ble High Court's orders are reproduced below:
“This Court is of the considered opinion that in the aforementioned facts and circumstances once the sufficient safeguards are provided in the IBC, 2016 & the regulations framed thereunder to the bank, and even the liability has not been crystallized either against the principal debtor or guarantors/mortgagors at present, then the proceeding, which is pending before the Debt Recovery Tribunal, Allahabad cannot go on and the same is stayed till the finalization of corporate insolvency resolution process or till the NCLT approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, as the case may be. With the aforesaid directions/observations, both the writ petitions are disposed”
In view of this, the financial creditor/SBI should not proceed against the personal guarantors till the moratorium period comes to an end or till the adjudicating authority approves a resolution plan under Sub-Section 1 of Section 31 or passes an order for liquidation of corporate debtor under Section 33.
In terms of the above, all the five CP/703/IB/2017, CP/704/IB/2017, CP/705/IB/2017, CP/706/IB/2017, CP/707/IB/2017 are disposed of.
There will be no order as to costs.
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