ORDER

The petitioner is before this Court seeking a writ in the nature of prohibition prohibiting the National Company Law Tribunal, Bengaluru (‘the Tribunal’ for short) from entertaining proceedings against him in C.P.(IB) 139/BB/2022 pending on its file filed by the

4th respondent acting on behalf of the 1st respondent.

2. Heard Sri S.Basavaraj, learned senior counsel appearing for the petitioner and Sri S.S.Naganand, learned senior counsel appearing for respondent No.1.

3. The petitioner is a promoter of a Company by name ‘Star Panel Boards Limited’ which comes to be incorporated as a public Company in 2011 and its name was then changed to Associate Décor Limited (‘the Company for short). Later the petitioner was suspended from the Company. Respondents 1 to 3 Banks acting as consortium of Banks enter into term loan agreements with the Company to grant term loan facilities. The loan becomes sticky. The consortium of Banks later began legal proceedings against the Company initiating proceedings under sub-section (2) of Section 13 of the SARFAESI Act by filing original application before the Debt Recovery Tribunal, Bengaluru in O.A.No.804 of 2017. The 2nd respondent then initiates proceedings under Section 7 of the Insolvency and Bankruptcy Code (‘the Code’ for short) against the Company and the proceedings under the Code are under progress before the Tribunal. On 11-08-2020, respondent No.1 issues a notice to the petitioner seeking to invoke the personal guarantee executed by the petitioner collectively on 10-07-2014. Despite the reply of the petitioner, demand notices come to be issued under the Code without replying to the defence of the petitioner to the aforesaid notices. On 31-12-2021, the 1st respondent files an Application under Section 95(1) of the Code through the Resolution Professional against the petitioner which is numbered as CP (IB) 139/BB/2022. On 16-02-2024 the Tribunal passes an order under Section 97 of the Code appointing one Ramratan Kanoongo as the Resolution Professional and directed him to submit a report on or before 20th March 2024. The moment the order is passed by the Tribunal, the petitioner has preferred the subject petition.

4. The learned senior counsel Sri S. Basavaraj appearing for the petitioner, would submit that the Tribunal, has no jurisdiction to continue the proceedings against the petitioner as the personal guarantee of the petitioner is not in existence as on the date between the petitioner and the consortium of Banks which had extended the credit facilities to the Company. It is his submission that the proceedings are maliciously instituted under the Code suppressing the fact that the petitioner had been granted a waiver for a portion of the credit facility extended to the Company and with respect to other portion there is no personal guarantee in force. Therefore, unless the petitioner is a personal guarantor to the Company, proceedings invoking Section 95 of the Code cannot be initiated against the petitioner. The learned senior counsel would further submit that despite noting petitioner’s objection that the claim of the 1st respondent was barred by time, and the petitioner was granted waiver in respect of credit facilities, the Tribunal has still proceeded to appoint a Resolution Professional. Therefore, he would seek quashment of the entire proceedings.

5. The learned senior counsel Sri S.S. Naganand representing the 1st respondent would vehemently refute the submissions to contend that the writ petition is premature. What is now challenged is only an order of appointing a Resolution Professional. The Resolution Professional will decide the issue whether the petitioner has any role to play in the existence of personal guarantee against the Company. The writ petition would not be maintainable at this stage, as the proceedings before the Tribunal are strictly in consonance with the judgment of the Apex Court in the case of DILIP B. JIWRAJKA v. UNION OF INDIA1.

6. The learned senior cou