DIVISION BENCH, COURT NO. II

Company Petition (IB) No. 286 of 2024

And

I.A. (IB) No. 2023/KB/2024

IN THE MATTER OF:

Company Petition (IB) No. 286 of 2024

An application under Section 95(1) of the Insolvency and Bankruptcy

Code, 2016.

IN THE MATTER OF:

UCO BANK

…FINANCIAL CREDITOR

Versus

Mr. Subrata Das

…PERSONAL GUARANTOR

And

IA (IB) No. 2023/KB/2024

An application under Section 99 of the Insolvency and Bankruptcy

Code, 2016.

IN THE MATTER OF:

Mr. Vaibhav Khandelwal

… RESOLUTION PROFESSIONAL/APPLICANT

CORAM:

SMT. BIDISHA BANERJEE, HON’BLE MEMBER (JUDICIAL)

SHRI. D. ARVIND, HON’BLE MEMBER (TECHNICAL)

CORRIGENDUM

1. This Order has been pronounced on 17.12.2024. At

Page 36, Para 31(b), sixth line of this Order, the word ‘Recovery

Proceedings’ shall read as ‘Appropriate Proceedings’.

2. The rest of the Order shall remain unchanged. This

Corrigendum be read along with the Order dated 17.12.2024.

D. Arvind Bidisha Banerjee

Member (Technical) Member (Judicial)

Bose, R. K. [LRA]

DIVISION BENCH, COURT NO. II Company Petition (IB) No. 286 of 2024 And I.A. (IB) No. 2023/KB/2024 IN THE MATTER OF:

Company Petition (IB) No. 286 of 2024 An application under Section 95(1) of the Insolvency and Bankruptcy Code, 2016, read with Rule 7 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019.

IN THE MATTER OF:

UCO BANK …FINANCIAL CREDITOR Versus Mr. Subrata Das …PERSONAL GUARANTOR And IA (IB) No.2023/KB/2024 An application under Section 99 of the Insolvency and Bankruptcy Code.

Mr. Vaibhav Khandelwal … RESOLUTION PROFESSIONAL/APPLICANT Date of Pronouncement: December 17, 2024.

APPEARANCES:

Ms. A. Rao, Adv. ] For the Financial Creditor Ms. Prerna Shaha, Adv. ] For the Resolution Professional Mr. Vaibhav Khandelwal, ] RP-in-person And Company Petition (IB) No. 286 of 2024

ORDER

Per: Bidisha Banerjee, Member (Judicial)

1. The Court congregated through a hybrid mode.

2. Heard the Ld. Counsel appearing on behalf of the Financial Creditor and the Ld. Counsel appearing on behalf of the Resolution Professional.

3. This application has been filed by the Financial Creditor, namely, UCO Bank to initiate insolvency proceeding against Mr. Subrata Das, the Personal Guarantor to the Principal Borrower M/s HARIDRA VINTRADE PRIVATE LIMITED under Section 95(1) of the Insolvency and Bankruptcy Code, 2016, for brevity “IBC”.

4. In terms of Section 99 of the IBC, report was called for from the RP appointed in the matter, namely, Mr. Vaibhav Khandelwal, the RP has forwarded the following report prayer in terms of Section 99(7) of IBC, which is extracted hereunder for clarity: -

Report u/s 99(7) of the IBC Code, 2016 And Company Petition (IB) No. 286 of 2024 And Company Petition (IB) No. 286 of 2024 And Company Petition (IB) No. 286 of 2024 And Company Petition (IB) No. 286 of 2024

5. A bare perusal of the report extracted above indicates that no Corporate Insolvency Resolution Process or CIRP has been initiated against the principal borrower M/s HARIDRA VINTRADE PRIVATE LIMITED.

And Company Petition (IB) No. 286 of 2024

6. At hearing it was argued that in absence of any CIR proceeding initiated against the principal borrower the present petition under Section 95(1) seeking to initiate insolvency proceedings against the Personal Guarantor of the Principal Borrower is not maintainable before this Adjudicating Authority i.e., NCLT. It would eventually lie before the jurisdictional the Debt Recovery Tribunal (DRT).

7. Thus, the issues that have cropped up for determination in the present matter are two folds are:

(i) Whether proceedings against Personal Guarantor under Section 95 of the Code is maintainable even when no CIRP proceedings have been initiated against the Corporate Debtor/ Principal Borrower (ii) Whether the present application under Section 95(1)

of the Code against the Personal Guarantor would be maintainable before this forum, or should the creditor approach the Learned Debt Recovery Tribunal (DR