State Bank Of India vs Bakul Jayantilal Karia

The instant application is filed by the Financial Creditor under Section 95 of the Code seeking initiation of CIRP against the personal guarantor of the Corporate Debtor.

Learned Senior Counsel, appearing on behalf of the Respondent submitted that personal guarantee was barred by limitation and had not been filed through RP, hence, liable to be dismissed on this preliminary ground only. Learned Counsel for the Applicant, however, submitted a copy of the order of the Hon'ble NCLAT in the case of Ravi Ajit Kulkarni Vs. State Bank of India dated 12.08.2021 and contented that all such pleadings could be taken up at the time of admission of the Corporate Debtor into CIRP.

Having heard both the sides, we hold that interim moratorium in terms of Section 96 of the IBC, 2016 starts from the date of filing of the application. As regard to the aspect of filing of application by the creditors itself as per provisions of Section 95(1) it can be done. We further hold that the name of the IRP, as suggested by the Financial Creditor be forwarded to IBBI for nomination of the same to carry out CIRP of the personal guarantor as per provisions of Section 97(3) of IBC, 2016. As regard to other pleas, we are of the view that those aspects can be examined at the time of admission or rejection of the application as per provisions of Section 100 of IBC, 2016. The IRP on being confirmed by IBBI is directed to file its report within 10 days from date of his appointment as IRP of the personal guarantor.

Matter to appear on 02.11.2021.