Calcutta High Court
Kotak Mahindra Bank Ltd vs Saumya Mining Limited And Anr on 23 February, 2024
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
OD -2
ORDER SHEET
EC/174/2020
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
KOTAK MAHINDRA BANK LTD.
VS
SAUMYA MINING LIMITED AND ANR.
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date: 23rd February, 2024.
Mr. Swatarup Banerjee, Adv.
Ms. Shrayashee Das, Adv.
...for the award-holder Mr. Rohit Das, Adv.
Ms. Kishwar Rahman, Adv.
Mr. Indradip Das, Adv.
Mr. Preetam Majumdar, Adv.
Ms. Sristi Roy, Adv.
Ms. Divya J. Tekriwal, Adv.
...for award-debtors The Court: Learned counsel appearing for the award-holder opposes any further adjournment of the examination of the award-debtor no. 2 on the ground of interim moratorium under Section 96 of the IBC, 2016. According to the counsel, the award-debtor no. 2 is the corporate guarantor of the award-debtor no. 1 and hence would be bound by Section 60(2) of the IBC, which contemplates all the applications being filed only before the NCLT. Counsel further submits that since all applications under Section 94 are presently being listed before the NCLT no Rules have been framed by the DRT under Section 94 of the IBC.
Learned counsel appearing for the award-debtors have relied on sections 79 and 60(1), (2) and (3) of the IBC to say that the award-debtor no. 2 2 has filed an application before the DRT In his personal capacity and not as a personal guarantor. It is also submitted that there is presently no CIRP pending before the NCLT against the award-debtor no. 1/corporate debtor.
The entire issue revolves around interpretation of Sections 60, 79 and 94-96 of the IBC as well as the Insolvency and Bankruptcy Board of India (Bankruptcy Process for Personal Guarantors to Corporate Debtors), Regulations, 2019, to ascertain whether the award-debtor no. 2 falls within the category of personal guarantor of the corporate debtor (award-debtor no.1) or whether he has filed the pending application before the DRT in his personal capacity. The conclusion which is invited from the Court is whether the pending proceeding before the DRT would act as a statutory bar against the ongoing examination of the award-debtor no. 2.
List this matter on 8th March, 2024 for learned counsel to indicate their points.
The presence of the award-debtors on that date specifically is dispensed with.
(MOUSHUMI BHATTACHARYA, J.) TR/