Kerala High Court
Benetha Elizabeth Thomas vs National Company Law Tribunal on 12 September, 2025
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 1
2025:KER:67928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
WP(C) NO. 14220 OF 2024
PETITIONERS:
1 ARUN MATHEWS PHILIP,AGED 39 YEARS
S/O P.M PHILIPOSE, PULIKKATHARAYIL HOUSE,
CHERUKOLE P.O, KOZHENCHERRY,
PATHANAMTHITTA, PIN - 689650
2 BENETHA ELIZABETH THOMAS, AGED 36 YEARS
W/O ARUN MATHEWS PHILIP KAPPIYUZHATHIL HOUSE
EAST OTHERA P.O., THIRUVALLA
PATHANAMTHITTA, PIN - 689546
3 P.M PHILIPOSE, AGED 66 YEARS
S/O.MATHEW MALATHARAYIL PHILIPOSE,
PULIKKATHARAYIL HOUSE, CHERUKOLE P.O,
KOZHENCHERRY, PATHANAMTHITTA, PIN - 689650
4 BEENA PHILIPOSE, AGED 64 YEARS
W/O P.M PHILIPOSE PULIKKATHARAYIL HOUSE,
CHERUKOLE P.O, KOZHENCHERRY,
PATHANAMTHITTA, PIN - 689650
BY ADVS.
SRI.S.SUJIN
SMT.NITA.N.S.
SHRI.SAJEEVU MATHEW
RESPONDENTS:
1 ADJUDICATING AUTHORITY
NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH,
COMPANY BHAVAN, BMC P.O, ERNAKULAM, PIN - 682021
2 SOUTH INDIAN BANK LIMITED
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 2
2025:KER:67928
CHINGAVANAM BRANCH, KUNNUTHARAYIL ARCADE,
CHINGAVANAM, KOTTAYAM, PIN - 686531
3 ABRAHAM T KURUVILA
S/O LATE T.C. ABRAHAM, THIRUTHITHARA
HOUSE,NEELAMPEROOR, EARA NORTH P.O,
ALAPPUZHA DISTRICT, PIN - 686534
4 SUSAN KURUVILA
W/O ABRAHAM T KURUVILLA, THURUTHITHARA HOUSE
NEELAMPEROOR, EARA NORTH P.O. ALAPPUZHA DISTRICT,
PIN - 686534
ADDL.R5 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
SHASHTRI BHAWAN, DR.RAJENDRA PRASAD ROAD,
NEW DELHI-110 001.
ADDL.R6 INSOLVENCY AND BANKRUPTEY BOARD OF INDIA (IBBI)
REPRESENTED BY DEPUTY GENERAL MANAGER 7TH FLOOR,
MAYUR BHAWAN, SHANKAR MARKET CONNAUGHT CIRCUS, NEW
DELHI-110 001.
ADDL R5 AND ADDL R6 ARE IMPLEADED AS PER ORDER DATED
11-04-2024 IN IA.NO2/2024 IN WP(C)14220/2024.
ADDL.R7 V.S. ABDUL KHADEER, S/O LATE SAYED MUHAMMED,
RESIDING AT VARUTHUPARAMBIL HOUSE,
AZHOOR JUNCTION, PATHANAMTHITTA
ADDL.R8 JASIN JOSE
RESOLUTION PROFESSIONAL OF
M/S SARK SPICE PRODUCTS PVT LTD, AGED 45 YEARS,
HAVING REGISTERED ADDRESS AT PORMATTAM MADASENY,
MOOKKANOOR P.O ANGAMALY ERNAKULAM
ADDL R7 AND ADDL R8 ARE IMPLEADED AS PER ORDERS
DATED 12.09.2025 IN IA.NO.6/2024 and 1/2025 IN
WP(C)14220/2024, RESPECTIVELY
BY ADVS.
SHRI.SUNIL SHANKER
SMT.D.REETHA
SMT.K.J.KARTHIKA
SHRI.AKHIL SURESH
SMT.VIDYA GANGADHARAN
SMT.DEVAYANI NAIR T.H.
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 3
2025:KER:67928
SHRI.PHILIP MATHEW
SRI.VINAY MATHEW JOSEPH
SRI.P.V.VINOD (BENGALAM)
M/S.INDIALAW
SMT.KALLIYANI KRISHNA B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.09.2025, ALONG WITH WP(C).29909/2025 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 4
2025:KER:67928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
WP(C) NO. 29578 OF 2025
PETITIONER:
ARUN MATHEWS PHILIP, AGED 40 YEARS
S/O MR PM PHILIPOSE,
RESIDING AT PULICKATHARAYIL HOUSE,
CHERUKOLE P.O., KOZHENCHERRY, KERALA,
PIN - 689650
BY ADVS.
SRI.VINAY MATHEW JOSEPH
SHRI.SAJEEVU MATHEW
RESPONDENTS:
1 NATIONAL COMPANY LAW TRIBUNAL
KOCHI BENCH REP. BY REGISTRAR THRIKKAKARA,
KAKKANAD, ERNAKULAM, PIN - 682030
2 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD,
NEW DELHI, PIN - 110001
3 THE SOUTH INDIAN BANK
REP BY ITS CHIEF MANAGER REGD. OFFICE: SIB,
HOUSE, T B ROAD, MISSION QUARTERS, THRISSUR,
KERALA BRANCH OFFICE: CHINGAVANAM WARD NO L1L34C
KUNNUTHARAYIL ARCADE, MC ROAD,
CHINGAVANAM KOTTAYAM, PIN - 686531
4 JASIN JOSE
INSOLVENCY RESOLUTION PROFESSIONAL PONMATTAM,
MADASSERY, MOOKKANNOOR P.O., ANGAMALLY,
ERNAKULAM, PIN - 683577
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 5
2025:KER:67928
5 SARK SPICE PRODUCTS PVT LTD
REP. BY ITS MANAGER, TAK INDUSTRIAL COMPLEX ,
NORTH NEELAMPEROOR , ALLEPPEY, KERALA,
INDIA, PIN - 686534
BY ADVS.
SHRI.SUNIL SHANKER
SHRI.AKHIL SURESH
SMT.VIDYA GANGADHARAN
SHRI.THOMAS GLAISON
SMT.KALLIYANI KRISHNA B.
SHRI.AMRITH M.J.
SMT.ANITA ELIZEBETH BABU
SHRI.RAHUL T.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.09.2025, ALONG WITH WP(C).14220 OF 2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 6
2025:KER:67928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
WP(C) NO. 29909 OF 2025
PETITIONER:
P M PHILIPOSE, AGED 44 YEARS
S/O MR MATHEW MALATHARAYIL PHILIPOSE
PULICKATHARAYIL HOUSE CHERUKOLE P O,
KOZHENCHERRY, KERALA-, PIN - 689650
BY ADVS.
SRI.VINAY MATHEW JOSEPH
SHRI.SAJEEVU MATHEW
RESPONDENTS:
1 NATIONAL COMPANY LAW TRIBUNAL
KOCHI BENCH, REP. BY REGISTRAR THRIKKAKARA,
KAKKANAD, ERNAKULAM ,, PIN - 682030
2 UNION OF INDIA
EPRESENTED BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD,
NEW DELHI, PIN - 110001
3 THE SOUTH INDIAN BANK
REP BY ITS CHIEF MANAGER REGD. OFFICE: SIB,
HOUSE, T B ROAD, MISSION QUARTERS, THRISSUR,
KERALA BRANCH OFFICE: CHINGAVANAM WARD NO L1L34C
KUNNUTHARAYIL ARCADE, MC ROAD, CHINGAVANAM
KOTTAYAM ,, PIN - 686531
4 JASIN JOSE
INSOLVENCY RESOLUTION PROFESSIONAL PONMATTAM,
MADASSERY, MOOKKANNOOR P.O., ANGAMALLY,
ERNAKULAM, PIN - 683577
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 7
2025:KER:67928
5 SARK SPICE PRODUCTS PVT LTD
REP. BY ITS MANAGER, TAK INDUSTRIAL COMPLEX ,
NORTH NEELAMPEROOR , ALLEPPEY, KERALA,
INDIA, PIN - 686534
BY ADVS.
SMT.SWATHYKRISHNA K., CGC
SHRI.SUNIL SHANKER
SHRI.AKHIL SURESH
SMT.VIDYA GANGADHARAN
SHRI.THOMAS GLAISON
SMT.KALLIYANI KRISHNA B.
SHRI.AMRITH M.J.
SMT.ANITA ELIZEBETH BABU
SHRI.RAHUL T.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.09.2025, ALONG WITH WP(C).14220 OF 2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 8
2025:KER:67928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
WP(C) NO. 29918 OF 2025
PETITIONER:
BEENA PHILIPOSE, AGED 66 YEARS
, W/O. PM PHILIPOSE AGED YEARS RESIDING AT
PULICKATHARAYIL HOUSE, CHERUKOLE P.O.,
KOZHENCHERRY, KERALA-, PIN - 689650
BY ADV SRI.VINAY MATHEW JOSEPH
RESPONDENTS:
1 NATIONAL COMPANY LAW TRIBUNAL
KOCHI BENCH REP. BY REGISTRAR THRIKKAKARA,
KAKKANAD, ERNAKULAM, PIN - 682030
2 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD,
NEW DELHI ,, PIN - 110001
3 THE SOUTH INDIAN BANK
REP BY ITS CHIEF MANAGER REGD. OFFICE: SIB,
HOUSE, T B ROAD, MISSION QUARTERS, THRISSUR,
KERALA BRANCH OFFICE: CHINGAVANAM WARD NO L1L34C
KUNNUTHARAYIL ARCADE, MC ROAD,
CHINGAVANAM KOTTAYAM, PIN - 686531
4 JASIN JOSE
INSOLVENCY RESOLUTION PROFESSIONAL PONMATTAM,
MADASSERY, MOOKKANNOOR P.O., ANGAMALLY,
ERNAKULAM, PIN - 683577
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 9
2025:KER:67928
5 SARK SPICE PRODUCTS PVT LTD
REP. BY ITS MANAGER, TAK INDUSTRIAL COMPLEX ,
NORTH NEELAMPEROOR , ALLEPPEY, KERALA,
INDIA, PIN - 686534
BY ADVS.
SMT.V.K.HEMA, CGC
SHRI.SUNIL SHANKER
SHRI.AKHIL SURESH
SMT.VIDYA GANGADHARAN
SHRI.THOMAS GLAISON
SMT.KALLIYANI KRISHNA B.
SHRI.AMRITH M.J.
SMT.ANITA ELIZEBETH BABU
SHRI.RAHUL T.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.09.2025, ALONG WITH WP(C).14220 OF 2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 10
2025:KER:67928
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
WP(C) NO. 29945 OF 2025
PETITIONER:
BENETHA ELIZABETH THOMAS, AGED 38 YEARS
W/O. ARUN MATHEWS PHILIP, RESIDING AT
KAPPIYUZHATHIL HOUSE, EAST OTHERA P.O.,
THIRUVALLA PATHANAMTHITTA-, PIN - 689546
BY ADVS.
SRI.VINAY MATHEW JOSEPH
SHRI.SAJEEVU MATHEW
RESPONDENTS:
1 NATIONAL COMPANY LAW TRIBUNAL
KOCHI BENCH REP. BY REGISTRAR THRIKKAKARA,
KAKKANAD, ERNAKULAM , PIN-, PIN - 682030
2 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS, SHASTRI BHAWAN,
DR. RAJENDRA PRASAD ROAD, NEW DELHI,
PIN - 110001
3 THE SOUTH INDIAN BANK
REP BY ITS CHIEF MANAGER REGD. OFFICE: SIB,
HOUSE, T B ROAD, MISSION QUARTERS, THRISSUR,
KERALA BRANCH OFFICE: CHINGAVANAM WARD NO L1L34C
KUNNUTHARAYIL ARCADE, MC ROAD,
CHINGAVANAM KOTTAYAM, PIN - 686531
4 JASIN JOSE
INSOLVENCY RESOLUTION PROFESSIONAL PONMATTAM,
MADASSERY, MOOKKANNOOR P.O., ANGAMALLY,
ERNAKULAM ,, PIN - 683577
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 11
2025:KER:67928
5 SARK SPICE PRODUCTS PVT LTD
REP. BY ITS MANAGER, TAK INDUSTRIAL COMPLEX ,
NORTH NEELAMPEROOR , ALLEPPEY, KERALA,
INDIA, PIN - 686534
BY ADVS.
SMT.ANUROOPA JAYADEVAN, CGC
SHRI.SUNIL SHANKER
SHRI.AKHIL SURESH
SMT.VIDYA GANGADHARAN
SHRI.THOMAS GLAISON
SMT.KALLIYANI KRISHNA B.
SHRI.AMRITH M.J.
SMT.ANITA ELIZEBETH BABU
SHRI.RAHUL T.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.09.2025, ALONG WITH WP(C).14220 OF 2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 12
2025:KER:67928
VIJU ABRAHAM, J.
.................................................................
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025
.................................................................
Dated this the 12th day of September, 2025
JUDGMENT
Since common issues are involved in these writ petitions, they are heard and disposed of by a common judgment. For convenience, W.P.(C) No.29909 of 2025 is treated as the leading case and the facts of the said case will be adverted to in this judgment.
2. W.P.(C) No.29909 of 2025 is filed challenging Ext.P6 order dated 08.07.2025 passed by the 1st respondent the National Company Law Tribunal, Kochi Bench (hereinafter referred to as "NCLT, Kochi"). Petitioner has also sought for a direction to the 1 st respondent not to register petitions filed under Section 95 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IB Code, 2016") without pending Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP") proceedings against the respective corporate debtor. Petitioner challenges the proceedings as well as the order of admission dated 08.07.2025 passed in CP(IB)/56/KOB/2023 by the NCLT, Kochi (Ext.P6). The legal contention raised by the petitioner is W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 13 2025:KER:67928 that the NCLT, Kochi, the 1st respondent herein, has no jurisdiction to entertain the petition under Section 95 of the IB Code, 2016, since the adjudicating authority is the Debt Recovery Tribunal (hereinafter referred to as "DRT") under the Code. The subject company petition was filed by the 3rd respondent bank before the NCLT, Kochi contending that the 5 th respondent, who is the corporate debtor, had availed several credit facilities from them and the petitioner and others had jointly executed a guarantee agreement dated 24.05.2018 in favour of the 3 rd respondent bank, thereby guaranteeing the due repayment and discharge of all amounts payable by the corporate debtor in connection with the said credit facility. The loan accounts of the corporate debtor were irregular and ultimately classified as Non-Performing Asset (NPA) on 24.03.2021 with retrospective effect from 20.10.2020. The personal guarantee furnished by the petitioner was purportedly invoked vide demand notice dated 30.03.2021, whereby the petitioner was called upon to repay the outstanding liabilities claimed to be due from the corporate debtor under the terms of the guarantee. The 3rd respondent bank proceeded to file O.A. No.242 of 2021 before the DRT, Kochi against the corporate debtor and guarantors and the same is pending consideration. While so, claiming a debt of Rs.10,42,35,851/- insolvency proceedings were initiated against the petitioner and other personal guarantors as per W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 14 2025:KER:67928 Ext.P1 company petition before the NCLT, Kochi. Petitioner entered appearance and filed Ext.P2 reply wherein the vires of the petition was challenged on the ground that the said petition is hit by limitation as the guarantee was executed on 24.05.2018 and the invocation of guarantee on 30.03.2021 was beyond the statutory period. Ext.P3 rejoinder was filed by the 3rd respondent bank. While so, the 1st respondent passed Ext.P4 preliminary order dated 22.03.2024 appointing the 4th respondent as interim resolution professional with a direction to file a report upon the averments in the company petition. Thereafter, the petitioner filed a writ petition, W.P.(C) No.14220 of 2024, before this court challenging Ext.P4 order dated 22.03.2024. It was filed raising the issue of limitation, and the court has admitted the matter and is pending consideration and the same is posted along with this writ petition. While the said writ petition is pending, the NCLT, Kochi, proceeded to pass Ext.P6 order dated 08.07.2025 admitting the company petition and further ordered that the petitioner shall not transfer, alienate, encumber or dispose of any of his assets or his legal rights or beneficial interest therein. Petitioner submits that he is seriously aggrieved by Ext.P6 order. The contention raised is that the 1 st respondent has exceeded its jurisdiction by allowing the company petition to be filed and registered before the NCLT despite the clear provisions in Section 79 of the IB Code, 2016, W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 15 2025:KER:67928 appointing the DRT as the adjudicating authority for petitions filed under Part III of the IB Code, 2016, which includes Section 95 as well. The 1st respondent did not apply its mind while registering the petition and ought to have enquired as to whether any CIRP proceedings were initiated against the corporate debtor and, if not, should have held that the proceedings could not have been filed against the guarantor and also due to the bar under Section 10A of the IB Code, 2016. It is on the above contentions that the petitioner has filed the abovesaid writ petition. Similar contentions are raised in the other writ petitions also.
3. Petitioner would submit that it is true that an appeal is provided against Ext.P6 order before the National Company Law Appellate Tribunal (hereinafter referred to as "NCLAT"), but the availability of an alternate remedy itself will not bar the jurisdiction of this Court in proceeding under Article 226 of the Constitution of India in as much as the petitioner has raised a question of jurisdiction of the NCLT to entertain Ext.P1 company petition and to issue Ext.P6 order since going by IB Code, 2016, DRT is the adjudicating authority. Petitioner relies on the judgment of the Apex Court in Ghanshyam Mishra & Sons (P) Ltd. v. Edelweiss Asset Reconstruction Co. Ltd., (2021) 9 SCC 657 and Embassy Property Developments Private Limited v. State of Karnataka and others, (2020) 13 SCC 308 and contended W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 16 2025:KER:67928 that an alternate remedy will not be a reason for not exercising jurisdiction by the High Court under Article 226 of the Constitution of India when the issue relates to enforcement of the fundamental right, violation of the principles of natural justice, the proceedings challenged are without jurisdiction or in cases where the validity of a statute is challenged. Based on the judgments cited supra it is the further contention of the learned counsel for the petitioner that since the proceedings have been challenged for the reason that NCLT has no jurisdiction to entertain such a petition and to issue an order in the nature of Ext.P6, the writ petition is perfectly maintainable before this Court.
4. The essential objection raised by the learned counsel for the petitioner regarding the maintainability of Ext.P1 company petition before the NCLT is that the said Tribunal cannot act as the adjudicating authority for petitions filed under Section 95 of the IB Code, 2016 when CIRP was never filed against the corporate debtor. Though the NCLT has been made the adjudicating authority for insolvency proceedings under Part II of the Code, the same cannot be applied to Part III of the Code, which deals with insolvency proceedings relating to personal guarantors. It is further contended that Section 79(1) as well as Section 179 of the IB Code, 2016 make it clear that the adjudicating authority in W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 17 2025:KER:67928 Part III of the Code is the DRT. As Section 95 comes within the purview of Part III, the DRT would be the adjudicating authority and also the proper forum for filing a Section 95 petition. It is further contended that it is only in the case where a CIRP with respect to a corporate debtor is initiated, pending or concluded, that the NCLT can claim jurisdiction under the IB Code, 2016 by virtue of the powers under Section 60 of the Code. In the absence of an "initiated" or "pending" or "concluded" CIRP against a principal borrower/corporate debtor, an application under Section 95(1) to initiate insolvency resolution process against a personal guarantor to a corporate debtor will not be maintainable before the NCLT, and the recovery proceedings will lie only before the DRT having territorial jurisdiction. Petitioner relying on the judgment of the Madras High Court in Rohit Nath @ Rohit Rabindra Nath v. KEB Hana Bank Ltd., 2021 SCC OnLine Mad. 2734 submits that the issue is settled in his favour. Petitioner also relies on the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (hereinafter referred to as "IB Rules, 2019") wherein Rule 3 provides for the adjudicating authority, which mandates that for the purpose of Section 60, the NCLT constituted under Section 408 of the Companies Act, 2013 or in cases other than sub-clause (i), the DRT established under W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 18 2025:KER:67928 Sub-section (1A) of Section 3 of the Recovery of Debts and Bankruptcy Act, 1993 will be the adjudicating authority. The NCLT while issuing Ext.P6 order did not apply its mind to the interplay between Section 60, Section 10A, Part II and Part III, especially Section 95 of the IB Code, 2016 and therefore the Tribunal has acted in excess of its jurisdiction. It is on the said grounds that the petitioner has approached this Court challenging Ext.P6 order passed by the NCLT, Kochi on 08.07.2025.
5. A detailed counter affidavit has been filed by the 3 rd respondent bank, wherein it is primarily contended that there is an effective alternative remedy of appeal as provided under Section 61 of the IB Code, 2016 to the NCLAT against the order impugned herein and therefore the present writ petition is not maintainable. Reliance was placed on the judgment in Sulochana Gupta and Ors. v. RBG Enterprises Private Ltd. and Ors., MANU/KE/2569/2020, wherein it is held that the orders of the NCLT cannot be challenged in writ petition and therefore the present challenge is not maintainable before this Court. It is further contended that various facilities were extended by the bank to the corporate debtor on the basis of the personal guarantee issued by the petitioner herein, and the same is defaulted and proceedings were initiated by the bank including the proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 19 2025:KER:67928 of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act"). Various writ petitions were filed by the corporate debtor challenging the proceedings initiated under the SARFAESI Act. Since there was no repayment of the amount due, a demand notice dated 05.12.2022 under Rule 7(1) of the IB Rules, 2019 was issued. The said notice was received by the petitioner guarantor and thereafter the bank has filed a petition for initiation of CIRP against the petitioner before the NCLT, Kochi under Section 95(1) of the IB Code, 2016 and as per order dated 22.03.2024 the NCLT appointed a resolution professional and the said resolution professional filed a report stating that the application is eligible for approval. It is contended that thereafter the application was heard and by order dated 08.07.2025 it was admitted and the order was issued. Learned counsel for the 3rd respondent submits that the jurisdiction of the NCLT under Section 60 to adjudicate applications under Section 95 in respect of personal guarantors of corporate debtors, sans any CIRP proceedings against the corporate debtor, is no longer res integra, having been settled by the Apex Court in Mahendra Kumar Jajodia v. State Bank of India, Civil Appeal Nos.1871-1872 of 2022 dated 06.05.2022, confirming the order of the NCLAT dated 27.01.2022 in Mahendra Kumar Jajodia v. State Bank of India, MANU/NL/0081/2022. It is further contended that the Apex Court in W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 20 2025:KER:67928 Lalit Kumar Jain v. Union of India, (2021) 9 SCC 321 has upheld the notification dated 15.11.2019 issued by the Central Government bringing into force inter alia the following provisions of IB Code, 2016, viz., Section 2(e), Sections 94 to 187 (both inclusive), etc., and as a result of the same the NCLT became the adjudicating authority in respect of personal guarantors of corporate debtors. It is also contended that, as per the IB Rules, 2019, framed under the IB Code, 2016, and the forms specified, it is abundantly clear that the adjudicating authority in respect of personal guarantors to the corporate debtors is the NCLT, and the jurisdiction of the Tribunal is not contingent upon the pendency of CIRP against the corporate debtor. On the basis of the same, the 3rd respondent bank has sought for dismissal of the writ petitions.
6. A detailed counter affidavit has been filed by the 4 th respondent wherein also it is contended that the writ petition under Article 226 of the Constitution of India is not maintainable in view of the statutory remedy available to the petitioner under Section 61 of the IB Code, 2016 by way of an appeal to the NCLAT against Ext.P6 order dated 08.07.2025 passed by the NCLT, Kochi. The Apex Court in Embassy Property Developments's case cited supra has held that High Courts should not ordinarily interfere under Article 226 of the Constitution when a statutory appellate remedy is available under the IB W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 21 2025:KER:67928 Code, 2016, except in cases of jurisdictional error or breach of natural justice, either of which is not made out in the present case. The plea of hardship raised by the petitioner, namely the pendency of matters before NCLAT and the inconvenience of filing an appeal, cannot be a ground to bypass the well-structured statutory appellate mechanism under the IB Code, 2016. It is further contended that Section 60(1) of the IB Code, 2016 explicitly vests jurisdiction in the NCLT for insolvency resolution of personal guarantors to corporate debtors, and this Jurisdiction is independent of the pendency of CIRP. It is also contended that the deliberate inclusion of the phrase "personal guarantors thereof" in Section 60(1) reflects the legislative mandate that insolvency proceedings relating to personal guarantors of corporate debtors stand on a special footing and fall within the exclusive jurisdiction of the Tribunal. It is further contended that Section 179 of the IB Code, 2016, which vests jurisdiction in the DRT for individuals and partnership firms, is expressly made "subject to Section 60". Therefore, where the subject matter involves a personal guarantor of a corporate debtor, Section 60 overrides Section 179, and the Jurisdiction vests exclusively in the NCLT. It is also contended that the Apex Court in Lalit Kumar Jain's case cited supra upheld the Central Government's notification dated 15.11.2019, bringing personal guarantors within the W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 22 2025:KER:67928 fold of NCLT, recognising the intrinsic connection between corporate debtors and their guarantors. Any interpretation that jurisdiction over personal guarantors lies with the DRT in the absence of a CIRP itself would defeat the very object of the 2019 notification. It is also contended that the issue is covered against the petitioner by the judgment in Mahendra Kumar Jajodia's case cited supra. It is also contended that the petitioner cannot rely on the judgment of the Madras High Court in Rohit Nath's case cited supra in as much as the same does not referred to or consider the binding judgment of the Apex Court in Mahendra Kumar Jajodia's case cited supra, which was decided as early as on 21.03.2022, which upheld the jurisdiction of the NCLT under Section 60(1) of the IB Code, 2016 to entertain the application against personal guarantors even in the absence of a pending CIRP against the corporate debtor. The said position was reaffirmed by the NCLAT (Principal Bench) New Delhi in Anita Goyal v. Vistra ITCL (India) Ltd. & Anr. (Company Appeal (AT) (Ins.) Nos.2282 and 2283 of 2024. On the basis of the same, the learned counsel for the 4th respondent prayed for dismissal of the writ petitions.
7. I have heard the rival contentions on both sides.
8. It is the contention of the learned counsel for the petitioner that Ext.P1 proceedings initiated before the NCLT, Kochi is not maintainable W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 23 2025:KER:67928 in as much as the proceedings against a personal guarantor of a corporate debtor will lie only before the DRT and since the issue now raised is an issue regarding jurisdiction of the NCLT to adjudicate a claim in the nature of Ext.P1 it is contended that the writ petition filed is perfectly maintainable before this Court. Petitioner does not dispute that the order impugned herein is appealable before the NCLAT as per Section 61 of the IB Code, 2016. Petitioner relies on the judgment in Embassy Property Developments's case cited supra, which considered the jurisdiction and power of the High Court under Article 226 of the Constitution of India when there is an alternate remedy provided to challenge the said order and in the said judgment it was held that an exception to the self imposed restraint of the High Courts when the statutory alternative remedy of appeal is available, is a lack of jurisdiction on the part of the statutory/quasi-judicial authority, against whose order a judicial review is sought and held that the distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by the High Courts, when Article 226 of the Constitution is sought to be invoked bypassing a statutory alternative remedy provided by a special statute. So, going by the said judgement, when there is a case of lack of jurisdiction of the Tribunal to entertain a petition, naturally the petitioner W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 24 2025:KER:67928 is entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution, but when it is a case of wrongful exercise of available jurisdiction, the parties should be relegated to challenge the proceedings before the statutory appellate forum. Therefore, this Court assumes jurisdiction in a case where the NCLT has absolutely no jurisdiction to entertain Ext.P1 company petition and to issue Ext.P6 order. The specific contention raised by the petitioner is also on the said line. Therefore, this Court has to consider as to whether the NCLT has jurisdiction to consider Ext.P1 company petition and to issue Ext.P6 order. The learned counsel for the petitioner has placed reliance on paragraphs 33 and 34 of the judgment in Embassy Property Developments's case cited supra, which reads as follows:
"33. Sub-section (4) of Section 60 of IBC, 2016 states that the NCLT will have all the powers of the DRT as contemplated under Part III of the Code for the purposes of Sub-section (2). Sub- section (2) deals with a situation where the insolvency resolution or liquidation or bankruptcy of a corporate guarantor or personal guarantor of a corporate debtor is taken up, when CIRP or liquidation proceeding of such a corporate debtor is already pending before NCLT. The object of Sub-section (2) is to group together (A) the CIRP or liquidation proceeding of a corporate debtor and (B) the insolvency resolution or liquidation or bankruptcy of a corporate guarantor or personal guarantor of the very same corporate debtor, so that a single Forum may deal with both. This is to ensure that the CIRP of a corporate debtor and the insolvency resolution of the individual guarantors of the very same corporate debtor do not W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 25 2025:KER:67928 proceed on different tracks, before different Fora, leading to conflict of interests, situations or decisions.
34. If the object of Sub-section (2) of Section 60 is to ensure that the insolvency resolutions of the corporate debtor and its guarantors are dealt with together, then the question that arises is as to why there should be a reference to the powers of the DRT in Sub-section (4). The answer to this question is to be found in Section 179 of IBC, 2016. Under Section 179 (1), it is the DRT which is the Adjudicating Authority in relation to insolvency matters of individuals and firms. This is in contrast to Section 60(1) which names the NCLT as the Adjudicating Authority in relation to insolvency resolution and liquidation of corporate persons including corporate debtors and personal guarantors. The expression "personal guarantor" is defined in S.5(22) to mean an individual who is the surety in a contract of guarantee to a corporate debtor. Therefore the object of Sub-section (2) of Section 60 is to avoid any confusion that may arise on account of Section 179(1) and to ensure that whenever a CIRP is initiated against a corporate debtor, NCLT will be the Adjudicating Authority not only in respect of such corporate debtor but also in respect of the individual who stood as surety to such corporate debtor, notwithstanding the naming of the DRT under Section 179(1) as the Adjudicating Authority for the insolvency resolution of individuals. This is also why Sub-section (2) of Section 60 uses the phrase "notwithstanding anything to the contrary contained in this Code"."
In this case the Apex Court was essentially considering the question as to whether the NCLT has power to issue directions in relation to a matter covered by Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) and the court held that the matter which is in the realm of public law is not within the jurisdiction of the NCLT and the W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 26 2025:KER:67928 proper forum for adjudication of public law claims is the writ jurisdiction of the High Courts and therefore the orders of the NCLT was interfered with. In Embassy Property Developments's case cited supra, the Court was dealing with a totally different issue. I am of the view that the observation in paragraphs 33 and 34 of the Embassy Property Developments's case cited supra, which is extracted above, will not come to the help of the petitioner. In the said judgment the Court has examined the power of the NCLT under Section 60 of the IB Code, 2016 and interpreting the various Sub-sections of Section 60 the Court has held that when CIRP or liquidation proceedings of such corporate debtor is already pending before the NCLT, the proceedings against the personal guarantor of a corporate debtor is also to be taken up before the NCLT concerned, so that a single forum may deal with both so as to ensure that the CIRP of a corporate debtor and the insolvency resolution of the individual guarantor of the very same corporate debtor do not proceed on different tracks, before different fora, leading to conflict of interests, situations and decisions. Therefore, it is held that the object of Sub-section (2) of Section 60 of the IB Code, 2016 is to ensure that both the proceedings are dealt with together. The Court also took into consideration Section 179 of IB Code, 2016, which provides that the DRT should be the adjudicating authority in relation to the W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 27 2025:KER:67928 insolvency matters of individuals and firms, which is in contrast to Section 60(1) which names the NCLT as the adjudicating authority in relation to insolvency resolution and liquidation of corporate persons including corporate debtors and personal guarantors. Taking into consideration the said Section the Court held that the object of Section 60(2) is to avoid any confusion that may arise on account of Section 179(1) to ensure that whenever a CIRP is initiated against a corporate debtor, the NCLT will be the adjudicating authority not only in respect of such corporate debtor, notwithstanding the naming of the DRT under Section 179(1) as the adjudicating authority for the insolvency resolution of individuals. The Court has also taken note of the fact that this is so because Section 60(2) of the IB Code, 2016 starts with the phrase "notwithstanding anything to the contrary contained in this Code". But in fact the Apex Court was essentially considering the issue as to whether the NCLT has jurisdiction in relation to matters covered by MMDR Act and held that the NCLT has no jurisdiction. Reliance was placed by the learned counsel for the petitioner on the judgment of the Madras High Court in Rohit Nath's case cited supra. The issue considered in the said judgment is with regard to the maintainability of the proceedings before the DRT when a subsequent application filed for insolvency resolution against the corporate debtor was taken on file and the same has been W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 28 2025:KER:67928 pending before the NCLT and as to whether the proceedings before the DRT is to be transferred to the file of the NCLT in view of Section 60(3) of the IB Code, 2016. Though the point raised for consideration is as to whether NCLT alone has jurisdiction in the matter of insolvency resolution and bankruptcy process for personal guarantors to corporate debtors in view of Section 60(1) of the IB Code, 2016, a reading of the judgment would reveal that the Court has held that the NCLT cannot be the exclusive authority or the adjudicating authority in such matters and relying on the definition clause of adjudicating authority in the IB Rules, 2019, the Court held that both NCLT and DRT will have jurisdiction as the case may be and in paragraph 5.1 of the said judgment the Court has entered a finding that the DRT shall have jurisdiction to entertain the applications against personal guarantors and Section 60(1) of the IB Code, 2016 can not be read to confer exclusive jurisdiction only on the NCLT. The Court while entering a finding to the effect that the proceedings before the DRT need not be transferred to the NCLT, also took note of the fact that bankruptcy order was passed by the DRT as early as on 08.08.2022 under Section 126 of the IB Code, 2016 and the only process which remains to be carried out is the bankruptcy trustee convening the meeting of the creditors and allotting the dividends and applying for the discharge order and that the proceedings cannot be W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 29 2025:KER:67928 transferred at the said stage. The Court has also taken into consideration the fact that the petitioner was all through out attempting to wriggle out of his liability and taking all these aspects into consideration and further specifically the fact that all the proceedings before the DRT are almost over and the same was filed as early as in 2022, the Court has passed an order to the effect that the proceedings need not be transferred to the NCLT and therefore the proceedings could continue before the DRT. A reading of the said judgment would clearly show that the Court has not entered a finding as to the exclusive jurisdiction of the DRT to entertain proceedings initiated against the guarantors of the corporate debtors.
9. It is worthwhile to note that the NCLAT has considered this issue in Mahendra Kumar Jajodia's case cited supra. As per order dated 27.01.2022 the NCLT has considered the issue as to whether proceedings seeking initiation of insolvency resolution process could be initiated against the guarantor since no CIRP or liquidation process is pending against the corporate debtor and held that since CIRP or liquidation proceedings was not pending against the principal borrower/corporate debtor, the initiation of proceedings against the guarantor of the corporate debtor is premature and therefore dismissed the proceedings initiated before the NCLT. It is challenging the same W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 30 2025:KER:67928 that an appeal was preferred before the NCLAT. The NCLAT, referring to Section 60 of the IB Code, 2016, which deals with the adjudicating authority for the corporate persons, held that Sub-section (1) of Section 60 provides that the adjudicating authority for the corporate persons, including corporate debtors and personal guarantors, shall be the NCLT. Paragraphs 6 to 11 of the said order reads as follows:
"6. Section 60 (1) & (2) which falls for consideration in the present case is as follows:
"Section 60: Adjudicating Authority for corporate persons.
60. (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 [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.
7. Sub-section 1 of Section 60 provides that Adjudicating Authority for the corporate persons including corporate debtors and personal guarantors shall be the NCLT. The Sub-Section 2 of Section 60 requires that where a CIRP or Liquidation Process of the Corporate Debtor is pending before 'a National Company Law Tribunal the application relating to CIRP of the Corporate Guarantor or Personal Guarantor as the case may be of such Corporate Debtor shall be filed before 'such' W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 31 2025:KER:67928 National Company Law Tribunal. The purpose and object of the sub- section 2 of Section 60 of the Code is that when proceedings are pending in 'a' National Company Law Tribunal, any proceeding against Corporate Guarantor should also be filed before 'such' National Company Law Tribunal. The idea is that both proceedings be entertained by one and the same NCLT. The sub-section 2 of Section 60 does not in any way prohibit filing of proceedings under Section 95 of the Code even if no proceeding are pending before NCLT.
8. The use of words 'a' and 'such' before National Company Law Tribunal clearly indicates that Section 60(2) was applicable only when a CIRP or Liquidation Proceeding of a Corporate Debtor is pending before NCLT. The object is that when a CIRP or Liquidation Proceeding of a Corporate Debtor is pending before 'a' NCLT the application relating to Insolvency Process of a Corporate Guarantor or Personal Guarantor should be filed before the same NCLT. This was to avoid two different NCLT to take up CIRP of Corporate Guarantor. Section 60(2) is applicable only when CIRP or Liquidation Proceeding of a Corporate Debtor is pending, when CIRP or Liquidation Proceeding are not pending with regard to the Corporate Debtor there is no applicability of Section 60(2).
9. Section 60(2) begins with expression 'Without prejudice to sub-section (1)' thus provision of Section 60(2) are without prejudice to Section 60(1) and are supplemental to sub-section (1) of Section 60.
10. Sub-Section 1 of Section 60 provides that Adjudicating Authority in relation to Insolvency or Liquidation for Corporate Debtor including Corporate Guarantor or Personal Guarantor shall be the NCLT having territorial jurisdiction over the place where the Registered Office of the Corporate Person is located. The substantive provision for an Adjudicating Authority is Section 60, sub-Section (1), when a particular case is not covered under Section 60(2) the Application as referred to in sub-section (1) of Section 60 can be very well filed in the NCLT having territorial jurisdiction over the place where the Registered Office of corporate Person is located.
11. The Adjudicating Authority erred in holding that since no CIRP or W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 32 2025:KER:67928 Liquidation Proceeding of the Corporate Debtor are pending the application under Section 95(1) filed by the Appellant is not maintainable. The Application having been filed under Section 95(1) and the Adjudicating Authority for application under Section 95(1) as referred in Section 60(1) being the NCLT, the Application filed by the Appellant was fully maintainable and could not have been rejected only on the ground that no CIRP or Liquidation Proceeding of the Corporate Debtor are pending before the NCLT. In result, we set aside the order dated 05th October, 2021 passed by the Adjudicating Authority. The Application filed by the Appellant under Section 95(1) of the Code is revived before the NCLT which may be proceeded in accordance with the law." The NCLAT in the said judgment held that since application has been filed under Section 95(1) of the IB Code 2016 and adjudicating authority for the application under Section 95(1) as referred to in Section 60(1) of the IB Code, 2016 being the NCLT, the application filed is perfectly maintainable before the NCLT and could not have been rejected only on the ground that no CIRP or liquidation proceedings of the corporate debtor is pending before the NCLT. Though appeals were preferred before the Apex Court as Civil Appeal Nos.1871-1872 of 2022, the appeals were also dismissed as per the order dated 06.05.2022. The judgment of the Madras High Court relied on by the petitioner is dated 30.03.2023, and the order of the Apex Court in Mahendra Kumar Jajodia's case cited supra, dated 06.05.2022, was not taken into consideration by the High Court of Madras while delivering the judgment in Rohit Nath's case cited supra. It is also to be noted that the NCLAT W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 33 2025:KER:67928 has considered this issue again in Vistra ITCL (India) Ltd.'s case cited supra and held that the NCLT has jurisdiction to entertain an application under Section 95 filed by the financial creditor against the personal guarantor for initiating insolvency resolution process. The said finding is reiterated by the NCLAT in Mahendra Kumar Agarwal v. PTC India Financial Services Ltd. and anr., (2023) ibclaw.in 488 NCLAT.
10. Reliance was also placed on the judgment of the Apex Court in Lalit Kumar Jain's case cited supra. In Lalit Kumar Jain's case cited supra, the Apex Court was considering the validity of the notification dated 15.11.2019 whereby various provisions of the IB Code, 2016 were enforced w.e.f. 01.12.2019 including Clause (e) of Section 2 (personal guarantors of corporate debtors). One of the contentions raised in the above case is that the impugned notification is ultra vires the provisions of the IB Code, 2016 in so far as it notifies the provisions of Part III of the IB Code, 2016 only in respect of the personal guarantors of the corporate debtors. It is further contended that Part III of the IB Code 2016, does not contain any provision permitting initiation of the insolvency resolution process against the personal guarantors to corporate debtors and the impugned notification, which provides to the contrary, is ultra vires. It is also contended that there is no intelligible differentia or rationale basis on which personal guarantors to corporate W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 34 2025:KER:67928 debtors have been singled out for being covered by the impugned provisions, particularly when the provisions of the Code do not separately apply to one sub-category of individuals, i.e., personal guarantors to corporate debtors and further when Part III of the Code does not apply to personal guarantors to corporate debtors at all. The Apex Court, after considering the rival contentions observed in paragraphs 95, 96, 105, 113 and 114 as follows:
"95. As discussed in a previous part of this judgment, insolvency proceedings relating to individuals is regulated by Part III of the Code. Before the Amendment of 2018, all individuals (personal guarantors to corporate debtors, partners of firms, partnership firms and other partners as well as individuals who were either partners or personal guarantors to corporate debtors) fell under one descriptive description under the unamended Section 2(e). The unamended Section 60 contemplated that the adjudicating authority in respect of personal guarantors was to be the NCLT. Yet, having regard to the fact that Section 2 brought all three categories of individuals within one umbrella class as it were, it would have been difficult for the Central Government to selectively bring into force the provisions of Part III only in respect of personal guarantors. It was here that the Central Government heeded the reports of expert bodies which recommended that personal guarantors to corporate debtors facing insolvency process should also be involved in proceedings by the same adjudicator and for this, necessary amendments were required. Consequently, the 2018 Amendment Act altered Section 2(e) and subcategorized three categories of individuals, resulting in Sections 2(e), (f) and (g). Given that the earlier notification of 30-11-2016 had brought the Code into force in relation to entities covered under Sections 2(a) to 2(d), the Amendment Act of 2018 provided the necessary statutory backing for W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 35 2025:KER:67928 the Central Government to apply the Code, in such a manner as to achieve the objective of the amendment, i.e. to ensure that adjudicating body dealing with insolvency of corporate debtors also had before it the insolvency proceedings of personal guarantors to such corporate debtors.
96. The Amendment of 2018 also altered Section 60 in that insolvency and bankruptcy processes relating to liquidation and bankruptcy in respect of three categories, i.e. corporate debtors, corporate guarantors of corporate debtors and personal guarantors to corporate debtors were to be considered by the same forum, i.e. NCLT.
xxxx xxxx xxxx
105. As noticed earlier, Section 60 had previously, under the original Code, designated NCLT as the adjudicating authority in relation to two categories: corporate debtors and personal guarantors to corporate debtors. The 2018 Amendment added another category: corporate guarantors to corporate debtors. The amendment seen in the background of the report, as indeed the scheme of the Code (i.e., Section 2 (e), Section 5 (22), Section 29A, and Section 60), clearly show that all matters that were likely to impact, or have a bearing on a corporate debtor's insolvency process, were sought to be clubbed together and brought before the same forum. Section 5(22) which is found in Part II (insolvency process provisions in respect of corporate debtors) as it was originally, defined personal guarantor to say that it "means an individual who is the surety in a contract of guarantee to a corporate debtor."
xxxx xxxx xxxx
113. It is clear from the above analysis that Parliamentary intent was to treat personal guarantors differently from other categories of individuals. The intimate connection between such individuals and corporate entities to whom they stood guarantee, as well as the possibility of two separate processes being carried on in different forums, with its attendant uncertain outcomes, led to carving out W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 36 2025:KER:67928 personal guarantors as a separate species of individuals, for whom the Adjudicating authority was common with the corporate debtor to whom they had stood guarantee. The fact that the process of insolvency in Part III is to be applied to individuals, whereas the process in relation to corporate debtors, set out in Part II is to be applied to such corporate persons, does not lead to incongruity. On the other hand, there appear to be sound reasons why the forum for adjudicating insolvency processes - the provisions of which are disparate - is to be common, i.e through the NCLT. As was emphasized during the hearing, the NCLT would be able to consider the whole picture, as it were, about the nature of the assets available, either during the corporate debtor's insolvency process, or even later; this would facilitate the CoC in framing realistic plans, keeping in mind the prospect of realizing some part of the creditors' dues from personal guarantors.
114. In view of the above discussion, it is held that the impugned notification is not an instance of legislative exercise, or amounting to impermissible and selective application of provisions of the Code. There is no compulsion in the Code that it should, at the same time, be made applicable to all individuals, (including personal guarantors) or not at all. There is sufficient indication in the Code - by Section 2(e), Section 5(22), Section 60 and Section 179 indicating that personal guarantors, though forming part of the larger grouping of individuals, were to be, in view of their intrinsic connection with corporate debtors, dealt with differently, through the same adjudicatory process and by the same forum (though not insolvency provisions) as such corporate debtors. The notifications under Section 1(3), (issued before the impugned notification was issued) disclose that the Code was brought into force in stages, regard being had to the categories of persons to whom its provisions were to be applied. The impugned notification, similarly inter alia makes the provisions of the Code applicable in respect of personal guarantors to corporate debtors, as another such category of persons to whom the Code has been extended. It is held W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 37 2025:KER:67928 that the impugned notification was issued within the power granted by Parliament, and in valid exercise of it. The exercise of power in issuing the impugned notification under Section 1(3) is therefore, not ultra vires; the notification is valid."
So the above judgment of the Apex Court clearly emphasized that personal guarantor of corporate debtor has to be treated as a separate species of individuals and when read with Section 60, it is without any doubt that NCLT is the forum for adjudicating insolvency resolution process of personal guarantor. Therefore going by the judgment in Lalit Kumar Jain's case cited supra, it is without any doubt that the proceedings against the personal guarantors of the corporate debtor is to be initiated before the NCLT. The contention of the petitioner relying on Section 60(2) of the IB Code, 2016, as discernible from the pleadings in the writ petition, is that when no CIRP is pending against the corporate debtor, no application under Section 95(1) will lie against the personal guarantor before the NCLT, and the proceedings can only be before the DRT. The said contention cannot be accepted for the reasons stated above and further that the only mandate of Section 60(2) is that whenever there is proceedings pending as against the corporate debtor then proceedings against the personal guarantor should also be before the said NCLT where such proceeding has been pending consideration and the intention behind the said provision is to see that W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 38 2025:KER:67928 there is no conflicting decision and the proceeding against the corporate debtor and guarantor should be adjudicated by the very same NCLT. That does not mean that the NCLT has no power to entertain proceedings against the personal guarantor of a corporate debtor when no CIRP is pending against the corporate debtor in as much as Section 60 of the IB Code, 2016, dealing with the adjudicating authority for corporate persons takes in persons including corporate debtors and personal guarantors also. Though Section 179 of the IB Code, 2016 vests jurisdiction on the DRT in respect of insolvency matters of individuals and firms, it starts with a clause "subject to the provisions of Section 60". Taking into consideration that Section 60(1) of the IB Code, 2016 specifically takes in proceedings against the personal guarantors and also in the light of the interpretation of law of the Apex Court in Mahendra Kumar Jajodia's case and Lalit Kumar Jain's case cited supra, I am of the view that the stand of the petitioner that the proceedings will lie only before the DRT cannot be accepted.
Yet another aspect to be noted in these cases is that Ext.P1 company petition was filed as early as in 2023, the petitioner entered appearance and filed Ext.P2 counter affidavit and in Ext.P2 counter affidavit, the only objection raised is regarding the plea of limitation in initiating the proceedings and the present contention raised in this writ W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 39 2025:KER:67928 petition was never raised before the NCLT. Further, Ext.P4 preliminary order was passed by the Tribunal on 22.03.2024, whereby a resolution professional was appointed. Though the said order was challenged in W.P.(C) No.14220 of 2024, the only contention raised in the said writ petition was regarding the plea of limitation and the competency of the NCLT in considering the company petition was not taken up as a ground. Further, no interim order was granted by this Court in W.P.(C) No.14220 of 2024. Now, only when Ext.P6 order was issued on 08.07.2025, almost two years after the filing of the company petition, that the plea of lack of jurisdiction of the NCLT in entertaining the company petition was first raised. I am of the view that there is delay and laches on the part of the petitioners in bringing to the notice of the Tribunal or this Court regarding the lack of jurisdiction of the NCLT in entertaining Ext.P1. Further, I have already held that the NCLT has jurisdiction to entertain an application for insolvency proceedings against the personal guarantor of a corporate debtor. I am of the view that Ext.P1 company petition filed before the NCLT is perfectly maintainable and the NCLT has jurisdiction to entertain the matter since in the judgements of the Apex Court relied on by the petitioners including Embassy Property Developments's case cited supra, it is held that only when there is total inherent lack of jurisdiction to entertain W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 40 2025:KER:67928 an application the writ petition could be maintained, bypassing the statutory appeal provided as per the statute. Since I have already found that the NCLT has jurisdiction to entertain Ext.P1 company petition, I am of the view that the petitioners should be relegated to avail the alternate remedy available to them as provided in Section 60(1) of the IB Code, 2016 before the NCLAT. Leaving open such right of the petitioners to challenge the impugned order in appropriate proceedings, these writ petitions are dismissed. The period during which the writ petitions were pending consideration before this Court should be excluded while computing the limitation period for preferring appeal against the orders impugned in these writ petitions before the NCLAT.
Sd/-
VIJU ABRAHAM JUDGE cks W.P(C) Nos.14220 of 2024 and 29578, 29909, 29918 & 29945 of 2025 41 2025:KER:67928 APPENDIX OF WP(C) 14220/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE DEMAND NOTICE DATED 01/11/2022 ISSUED TO THE PETITIONERS.
Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF
CP(IB)/56/KOB/2023 SHOWING THE
ACKNOWLEDGMENT OF DEBT DATED
23/05/2018.
Exhibit P3 TRUE COPY OF THE LETTER DATED
27/04/2021 SUBMITTED BY THE 3RD
RESPONDENT.
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT
SUBMITTED BY THE 1ST PETITIONER IN
CP(IB)/54/KOB/2023 WITHOUT EXHIBITS.
Exhibit P5 TRUE COPY OF THE COMMON ORDER DATED
22/03/2024 IN CP(IB)/54/KOB/2023,
CP(IB)/55/KOB/2023,CP(IB)/56/KOB/2023
AND CP(IB)/57/KOB/2023.
Exhibit P6 TRUE COPY OF THE W.P.(C) NO.21993/2025
WITHOUT EXHIBITS
Exhibit P7 TRUE COPY OF THE ORDER DATED 17/06/2025
IN W.P.(C) NO.21993/2025.
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 42
2025:KER:67928
APPENDIX OF WP(C) 29578/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SYNOPSIS AND COMPANY
PETITION IN CP(IB)/54/KOB/2023 BEFORE
NATIONAL COMPANY LAW TRIBUNAL, KOCHI
Exhibit P2 TRUE COPY OF THE REJOINDER OF THE 3RD
RESPONDENT FILED IN CP(IB)/54/KOB/2023
BEFORE THE NATIONAL COMPANY LAW
TRIBUNAL, KOCHI
Exhibit P3 TRUE COPY OF THE ORDER DATED 22.03.2024
IN CP (IB)/54/KOB/2023, BY THE NCLT,
KOCHI BENCH
Exhibit P4 TRUE COPY OF THE STATEMENT OF FACTS IN
WP© 14220/2024 FILED BEFORE THE KERALA
HIGH COURT
Exhibit P5 TRUE COPY OF THE ORDER DATED 08.07.2025
PASSED BY THE NCLT, KOCHI BENCH IN
CP(IB)/54/KOB/2023
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 43
2025:KER:67928
APPENDIX OF WP(C) 29909/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SYNOPSIS AND COMPANY
PETITION IN CP(IB)/56/KOB/2023 BEFORE
NATIONAL COMPANY LAW TRIBUNAL, KOCHI
Exhibit P2 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN
CP(IB)/56/KOB/2023 BEFORE THE NCLT,
KOCHI BENCH
Exhibit P3 TRUE COPY OF THE REJOINDER OF THE 3RD
RESPONDENT FILED IN CP(IB)/56/KOB/2023
BEFORE THE NATIONAL COMPANY LAW
TRIBUNAL, KOCHI
Exhibit P4 TRUE COPY OF THE ORDER DATED 22.03.2024
IN CP (IB)/56/KOB/2023, BY THE NCLT,
KOCHI BENCH
Exhibit P5 TRUE COPY OF THE STATEMENT OF FACTS IN
WP(C) 14220/2024 FILED BEFORE THE
KERALA HIGH COURT
Exhibit P6 TRUE COPY OF THE ORDER DATED 08.07.2025
PASSED BY THE NCLT, KOCHI BENCH IN
CP(IB)/56/KOB/2023
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 44
2025:KER:67928
APPENDIX OF WP(C) 29918/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SYNOPSIS AND COMPANY
PETITION IN CP(IB)/57/KOB/2023 BEFORE
NATIONAL COMPANY LAW TRIBUNAL, KOCHI
Exhibit P2 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN
CP(IB)/57/KOB/2023 BEFORE THE NCLT,
KOCHI BENCH
Exhibit P3 TRUE COPY OF THE ORDER DATED 22.03.2024
IN CP (IB)/57/KOB/2023, BY THE NCLT,
KOCHI BENCH
Exhibit P4 TRUE COPY OF THE STATEMENT OF FACTS IN
WP(C) 14220/2024 FILED BEFORE THE
KERALA HIGH COURT
Exhibit P5 TRUE COPY OF THE ORDER DATED 08.07.2025
PASSED BY THE NCLT, KOCHI BENCH IN
CP(IB)/57/KOB/2023
W.P(C) Nos.14220 of 2024 and 29578,
29909, 29918 & 29945 of 2025 45
2025:KER:67928
APPENDIX OF WP(C) 29945/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SYNOPSIS AND COMPANY
PETITION IN CP(IB)/55/KOB/2023 BEFORE
NATIONAL COMPANY LAW TRIBUNAL, KOCHI
Exhibit P2 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN
CP(IB)/55/KOB/2023 BEFORE THE NCLT,
KOCHI BENCH
Exhibit P3 TRUE COPY OF THE REJOINDER OF THE 3RD
RESPONDENT FILED IN CP(IB)/55/KOB/2023
BEFORE THE NATIONAL COMPANY LAW
TRIBUNAL, KOCHI
Exhibit P4 TRUE COPY OF THE ORDER DATED 22.03.2024
IN CP (IB)/55/KOB/2023, BY THE NCLT,
KOCHI BENCH
Exhibit P5 TRUE COPY OF THE STATEMENT OF FACTS IN
WP(C) 14220/2024 FILED BEFORE THE
KERALA HIGH COURT
Exhibit P6 TRUE COPY OF THE ORDER DATED 08.07.2025
PASSED BY THE NCLT, KOCHI BENCH IN
CP(IB)/55/KOB/2023