Guarantors liable if firms fail to repay: Supreme Court

Promoters, managing administrators and chairmen, who stand as personal guarantors to company loans, may also be proceeded in opposition to earlier than the company regulation tribunal if their firms are unable to repay money owed, dominated the Supreme Court on Friday because it declared “legal and valid” a November 15, 2019, notification issued by the Union authorities underneath the Insolvency and Bankruptcy Code (IBC).

“It is held 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 is therefore, not ultra vires; the notification is valid,” a bench of justices L Nageswara Rao and S Ravindra Bhat held.

Affirming the federal government’s mandate, the bench dismissed a clutch of 75 petitions, together with those filed by industrialists Anil Ambani, Venugopal Dhoot, and Kapil Wadhawan who had personally assured company debt, and who challenged the validity of the 2019 notification that sought to make them personally liable for remaining money owed not settled within the decision plan of the businesses underneath insolvency.

Friday’s ruling implies that in line with the federal government notification that activated the IBC provision in opposition to the guarantors of corporations going by way of insolvency proceedings, if the debt owed by such a company will not be repaid underneath the decision plan, the personal guarantor might be pressured out of business proceedings by the collectors.

Reacting to the decision, Faisal Sherwani, Partner, L&L Partners regulation agency, mentioned: “It is time for promoters who furnish personal guarantees lightly to wake up and smell the coffee. From a jurisprudential perspective, it is now clear that mere approval of a resolution plan relating to a corporate debtor would not mean that the personal guarantor is also off the hook. After all, the object sought to be achieved by the amendment was permissible and aimed at maintaining the financial health of the banking sector.”

The SC, nonetheless, held the 2019 authorities notification issued underneath the IBC was authorized and legitimate.

However, advocate Soumya Dharwa, who represented one of many petitioners within the matter, apprehended that the judgment could end in additional focus of powers with the lender banks by opening one other avenue for recovery of their loans other than SARFAESI Act, debt recovery proceedings, and different civil cures already out there. This, the lawyer mentioned, may even open the floodgates for a number of litigations between the lenders and company debtors and their personal guarantors.

While the petitions alleged that the Centre didn’t have the ability to usher in IBC provisions selectively to personal guarantors of company debtors, the highest court docket underscored that “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”.

“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 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,” mentioned the bench.

Citing varied pertinent provisions of IBC, the bench famous that there was “sufficient legislative guidance” for the central authorities to distinguish and classify personal guarantors individually from different people and supply the National Company Law Tribunal (NCLT) as a standard discussion board for the monetary establishments and different lenders to search recovery of their money owed.

“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 Committee of Creditors (CoC) in framing realistic plans, keeping in mind the prospect of realizing some part of the creditors’ dues from personal guarantors,” highlighted the bench, discovering justification in merger of proceedings in opposition to personal guarantors with that of company debtors.

It shot down one other competition by the petitioners that since an authorized decision plan in respect of a company debtor amounted to extinction of all excellent claims in opposition to that debtor, the legal responsibility of the personal guarantor should additionally go.

Referring to a number of judicial precedents in addition to provisions of the Contract Act, the bench held that the approval of a decision plan didn’t discharge personal guarantors of their liabilities underneath the contract of assure.

Representing the Centre, lawyer normal KK Venugopal and solicitor normal Tushar Mehta defended the November 15, 2019, notification that got here into pressure from December 1 that year on the grounds that the target was to have a unified adjudication by way of the identical discussion board (NCLT) for decision of points regarding company decision processes, in addition to chapter and insolvency processes in relation to personal guarantors.

The notification, the regulation officers claimed, would guarantee a extra optimum decision course of and the overall debt servicing of the company debtor may be lowered if the personal guarantor’s property had been additionally taken under consideration to mitigate the company debtor’s liabilities.

In June 2020, State Bank of India moved NCLT, Mumbai, to recuperate greater than 1,200 crore from Anil Ambani as he had given a personal assure for loans prolonged to Reliance Communications Ltd and Reliance Infratel Ltd. Soon thereafter, a number of promoters and administrators challenged the 2019 notification, prompting the Supreme Court to switch all issues to itself final year.

In view of the nationwide challenges to the notification, the highest court docket, in October 2020 requested the excessive courts throughout the nation not to cross any order in such instances. It had additionally handed an interim order, staying the insolvency and chapter proceedings in opposition to the personal guarantors, which is able to revive after the decision on Friday.

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