Kiran Gupta vs. State Bank of India Another

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2020 SCC OnLine Del 1390 : (2021) 276 DLT 148 (DB)

In the High Court of Delhi at New Delhi


(BEFORE HIMA KOHLI AND SUBRAMONIUM PRASAD, JJ.)

Kiran Gupta … Petitioner;


Versus
State Bank of India Another … Respondents.
W.P.(C) 7230/2020 and CM. Appl. 24414/2020(stay)
Decided on November 2, 2020
Advocates who appeared in this case:
Mr. Sandeep Sethi and Mr. Amit Singh Chadha, Senior Advocates with Mr. Arvind
Kumar Gupta and Ms. Henna George, Advocates
Mr. Rajiv Kapur and Mr. Akshit Kapur, Advocates for respondent No. 1/SBI.
Mr. Vikas Mehta and Mr. Apoorv Khator, Advocates for respondent No. 3/IBBI.
The Judgment of the Court was delivered by
SUBRAMONIUM PRASAD, J.:— The short question which arises for consideration in
this writ petition is as to whether a bank/financial institution can institute or continue
with proceedings against a guarantor under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the
SARFAESI Act’), when proceedings under the Insolvency and Bankruptcy Code 2016
(hereinafter referred to “IB Code”) have been initiated against the principal borrower
and the same are pending adjudication.
2. In the instant case, respondent No. 4/M/s. Metenere Ltd. is the principal
borrower. Respondent No. 4 (for short ‘the Principal Borrower’) had obtained loans
from the respondent/State Bank of India (for short, ‘the Bank’). The petitioner, who is
the wife of the promoter of the principal borrower, stood as a guarantor for repayment
of the loans. The Bank filed an insolvency petition against the principal borrower under
the provisions of the IB Code before the NCLT, Delhi.
3. During the pendency of the insolvency proceedings against the principal
borrower, the Bank issued a Notice dated 06.09.2018 under Section 13(2) of the
SARFAESI Act to the petitioner, who had stood as a guarantor for the principal
borrower. The Notice issued under Section 13(2) of the SARFAESI Act was replied to
by the petitioner. This was followed by issuance of a Possession Notice dated
16.07.2019, under Section 13(4) of the SARFAESI Act. Both the Notices i.e. one under
Section 13(2) and the other under Section 13(4) of the SARFAESI Act were challenged
by the petitioner by filing S.A. No. 118/2019 before the Debts Recovery Tribunal-II,
Delhi (for short ‘DRT-II’). In view of the negotiations/settlement talks that were going
on between the Bank and the Principal Borrower, S.A. No. 188/2019 was withdrawn.
4. A fresh Notice under Section 13(2) of the SARFAESI Act was issued by the Bank
on 11.06.2020. It is alleged by the petitioner that without issuing a Notice under
Section 13(4) of the SARFAESI Act, the Bank has issued a Sale Notice dated
27.08.2020, under Rule 8(6) of Security Interest (Enforcement) Rules for sale of her
residential house bearing House No. F-73, Preet Vihar, Delhi admeasuring 370 sq.yds,
by public e-auction to be held on 14.10.2020.
5. In the Insolvency Petition, a Resolution Professional has been appointed by the
learned NCLT, Delhi. It has also been stated by the petitioner that the Bank has filed
OAs, being OA.550/2019 and 583/2019, against the Principal Borrower for recovery of
money before the DRT-II, Delhi.
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6. Though, the petitioner had initially challenged various Notifications issued by the
Union of India in the writ petition but, when the said petition came up for hearing
before this court on 30.09.2020, Mr. Amit Singh Chadha, learned Senior Counsel
appearing for the petitioner had stated on instructions that he would not be pressing
prayer clauses (A) to (F) and had confined the relief in the petition to prayer clauses
(G) to (M). The writ petition is now being confined to the action of the Bank of
initiating proceedings against the petitioner under the SARFAESI Act when insolvency
proceedings have been initiated against the Principal Borrower under the IB Code and
the same are pending before the NCLT.
7. It is the contention of the petitioner that proceedings against the Principal
Borrower under the IB Code and against the Guarantor under the SARFAESI Act
cannot be instituted and continued simultaneously; unless the proceedings under the
IB Code do not come to an end and it is decided that the company cannot be revived,
proceedings against the Guarantor alone cannot go on; that if the Resolution Plan is
accepted, then under Section 31 of the IB Code, all the Guarantees become ineffective
as the Resolution Plan is binding on the Guarantors. A plea has been taken that after
approval of the Resolution Plan under the IB Code, the liability of the Guarantor also
comes to an end. It has also been stated that during the COVID-19 pandemic, the
Bank would not be in a position to fetch a good value of the property and therefore, it
will not be prudent to go ahead with the sale of the property.
8. Mr. Sandeep Sethi, learned Senior Advocate appearing for the petitioner
contended that from the date of admission of an application for initiating Corporate
Insolvency Process by the Adjudicating Authority, the Adjudicating Authority by order
declares a moratorium prohibiting institution or continuation of suits, arbitrations and
other proceedings against the entity against which the insolvency proceedings have
commenced. He submitted that Section 12 of the IB Code stipulates that the
Insolvency Resolution Process has to be completed within a period of 180 days from
the date of admission of the application and this period can be extended only by a
maximum period of 90 days. Under Section 31 of the IB Code, once a Resolution Plan
is submitted by the Resolution Professional and is approved by the Adjudicating
Authority, then the same is binding on the guarantor and the guarantor is discharged
from all his liabilities. It was therefore, the submission of Mr. Sethi that proceedings
against the guarantor under SARFAESI Act should await the final decision under the
IB Code. If the resolution process is accepted, then the guarantor is discharged of all
his liabilities, but on the other hand, if the resolution process fails, then the Bank
would be free to proceed against the principal borrower and the guarantor. He
concluded by arguing that a reading of Sections 14 and 31 of the IB Code would
warrant a stay on all proceedings against the Guarantor under the SARFAESI Act
during the continuation of the Insolvency Resolution Process.
9. Per contra, Mr. Kapur, learned counsel appearing for the respondent/Bank
submitted that the liability of a Guarantor is co-extensive with the Principal Debtor. He
stated that the issue raised by the petitioner is no longer res integra and is covered by
the judgment of the Supreme Court in State Bank of India v. V. Ramakrishan, reported
as (2018) 17 SCC 394, which holds in so many words that Sections 14 and Section 31
of the IB Code do not bar initiation and continuation of the SARFAESI proceedings
against the Guarantor.
10. Coming first to the relevant provisions, Sections 14 and 31 of the IB Code and
Section 128 of the Contract Act, read as under:—
“Section 14 of IB Code.
Moratorium.-(1) Subject to provisions of sub-section (2) and (3), on the
insolvency commencement date, the Adjudicating Authority shall by order declare
moratorium for prohibiting all of the following, namely:—
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(a) the institution of suits or continuation of pending suits or proceedings against


the corporate debtor including execution of any judgment, decree or order in
any court of law, tribunal, arbitration panel or other authority;
(b) transferring, encumbering, alienating or disposing of by the corporate debtor
any of its assets or any legal right or beneficial interest therein;
(c) any action to foreclose, recover or enforce any security interest created by the
corporate debtor in respect of its property including any action under the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002(54 of 2002);
(d) the recovery of any property by an owner or lessor where such property is
occupied by or in the possession of the corporate debtor.
(2) The supply of essential goods or services to the corporate debtor as may
be specified shall not be terminated or suspended or interrupted during
moratorium period.
1[(3) The provisions of sub-section (1) shall not apply to—
(a) such transaction as may be notified by the Central Government in
consultation with any financial regulator;
(b) a surety in a contract of guarantee to a corporate debtor.]
(4) The order of moratorium shall have effect from the date of such order till the
completion of the corporate insolvency resolution process:
Provided that where at any time during the corporate insolvency resolution
process period, if the Adjudicating Authority approves the resolution plan under
sub-section (1) of section 31 or passes an order for liquidation of corporate
debtor under section 33, the moratorium shall cease to have effect from the date
of such approval or liquidation order, as the case may be.”


Section 31 of IB Code.
Approval of resolution plan.-(1) If the Adjudicating Authority is satisfied that
the Resolution Plan as approved by the committee of creditors under sub-section
(4) of Section 30 meets the requirements as referred to in sub-section (2) of
Section 30, it shall by order approve the resolution plan which shall be binding on
the corporate debtor and its employees, members, creditors, 2[including the
Central Government, any State Government or any local authority to whom a debt
in respect of the payment of dues arising under any law for the time being in force,
such as authorities to whom statutory dues are owed,] guarantors and other
stakeholders involved in the resolution plan:
3[Provided that the Adjudicating Authority shall, before passing an order for
approval of resolution plan under this sub-section, satisfy that the resolution plan
has provisions for its effective implementation.]
(2) Where the Adjudicating Authority is satisfied that the resolution plan does
not confirm to the requirements referred to in sub-section (1), it may, by an order,
reject the resolution plan.
(3) After the order of approval under sub-section (1).-
(a) the moratorium order passed by the Adjudicating Authority under section 14
shall cease to have effect; and
(b) the resolution professional shall forward all records relating to the conduct of
the corporate insolvency resolution process and the resolution plan to the
Board to be recorded on its database.
4 [(4) The resolution applicant shall, pursuant to the resolution plan approved
under sub-section (1), obtain the necessary approval required under any law for the
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time being in force within a period of one year from the date of approval of the
resolution plan by the Adjudicating Authority under subsection (1) or within such
period as provided for in such law, whichever is later:
Provided that where the resolution plan contains a provision for combination as
referred to in section 5 of the Completion Act, 2002(12 of 2003), the resolution
applicant shall obtain the approval of the Competition Commission of India under
that Act prior to the approval of such resolution plan by the committee of creditors.]
Section 128 of Contract Act.
Surety's liability.— The liability of the surety is co-extensive with that of the
principal debtor, unless it is otherwise provided by the contract.
11. Section 128 of the Contract Act provides that the liability of a Guarantor is
coextensive with that of the Principal Debtor. In Industrial Investment Bank of India
Limited v. Biswanath Jhunjhunwala, reported as (2009) 9 SCC 478, the Supreme
Court has observed as under:—
“14. Mr. Gupta, in support of his submission, placed reliance on a judgment of
this Court in Bank of Bihar Ltd. v. Dr. Damodar Prasad [AIR 1969 SC 297 : (1969) 1
SCR 620], AIR p. 298, para 5. In that case, the Court referred to a judgment in
Lachhman Joharmal v. Bapu Khandu [(1869) 6 Bom HCR 241] in which the Division
Bench of the Bombay High Court held as under: (Lachhman case [(1869) 6 Bom
HCR 241], Bom HCR p. 242)
“The court is of opinion that a creditor is not bound to exhaust his
remedy against the principal debtor before suing the surety and that
when a decree is obtained against a surety, it may be enforced in the
same manner as a decree for any other debt.”
15. This Court, while approving the said judgment, observed that: (Damodar
Prasad case [AIR 1969 SC 297 : (1969) 1 SCR 620], AIR p. 299, para 6)
“6. … The very object of the guarantee is defeated if the creditor is
asked to postpone his remedies against the surety. In the present case
the creditor is a banking company. A guarantee is a collateral security
usually taken by a banker. The security will become useless if his rights
against the surety can be so easily cut down.”
16. In SBI v. Indexport Registered [(1992) 3 SCC 159 : AIR 1992 SC 1740] this
Court held that the decree-holder bank can execute the decree against the
guarantor without proceeding against the principal borrower. The guarantor's
liability is coextensive with that of the principal debtor.
17. In that case, this Court further observed that: (Indexport case [(1992) 3
SCC 159 : AIR 1992 SC 1740], SCC p. 164, para 10)
“10. … The execution of the money decree is not made dependent on first
applying for execution of the mortgage decree. The choice is left entirely with the
decree-holder. The question arises whether a decree which is framed as a
composite decree, as a matter of law, must be executed against the mortgage
property first or can a money decree, which covers whole or part of decretal
amount covering mortgage decree can be executed earlier. There is nothing in
law which provides such a composite decree to be first executed only
against the [principal debtor] [Ed. : The word in the original is “property”—
however the import is the same : that a composite decree can be executed both
against the principal debtor or the sureties.].”
The Court further observed that (Indexport case [(1992) 3 SCC 159 : AIR
1992 SC 1740], SCC p. 165, para 13) “the liability of the surety is
coextensive with that of the principal debtor, unless it is otherwise
provided by the contract”. [Ed. : This is the verbatim text of Section 128 of
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the Contract Act, 1872.]


18. The term “coextensive” has been defined in the celebrated book of
Pollock & Mulla on Indian Contract and Specific Relief Act, 10th Edn., at p.
728 as under:
“Coextensive.—Surety's liability is coextensive with that of the
principal debtor.
A surety's liability to pay the debt is not removed by reason of the
creditor's omission to sue the principal debtor. The creditor is not bound to
exhaust his remedy against the principal before suing the surety, and a suit
may be maintained against the surety though the principal has not been
sued.”
19. In Chitty on Contracts, 24th Edn., Vol. 2 at pp. 1031-32, para 4831 it is
stated as under:
“4831. Conditions precedent to liability of surety.— Prima facie the surety may
be proceeded against without demand against him, and without first proceeding
against the principal debtor.”
20. In Halsbury's Laws of England, 4th Edn., Vol. 20, para 159 at p. 87 it has
been observed that:
“159. … It is not necessary for the creditor, before proceeding against the
surety, to request the principal debtor to pay, or to sue him, although solvent,
unless this is expressly stipulated for.”
21. A Division Bench of the Bombay High Court in Jagannath Ganeshram
Agarwala v. Shivnarayan Bhagirath [AIR 1940 Bom 247] held that the liability of
the surety is coextensive, but is not in the alternative. Both the principal debtor and
the surety are liable at the same time to the creditors. A Division Bench of the High
Court of Karnataka, in Hukumchand Insurance Co. Ltd. v. Bank of Baroda [AIR 1977
Kant 204] had an occasion to consider the question of liability of the surety vis-à-
vis the principal debtor. The Court held as under : (AIR p. 208, para 12)
“12. … The question as to the liability of the surety, its extent and the manner
of its enforcement have to be decided on first principles as to the nature and
incidents of suretyship. The liability of a principal debtor and the liability of a
surety which is coextensive with that of the former are really separate liabilities,
although arising out of the same transaction. Notwithstanding the fact that they
may stem from the same transaction, the two liabilities are distinct. The liability
of the surety does not also, in all cases, arise simultaneously.”


27. The legal position as crystallised by a series of cases of this Court is
clear that the liability of the guarantor and principal debtors is coextensive
and not in alternative. When we examine the impugned judgment in the
light of the consistent position of law, then the obvious conclusion has to
be that the High Court under its power of superintendence under Article 227
of the Constitution of India was not justified to stay further proceedings in
OA No. 156 of 1997. Consequently, the appeal is allowed and the impugned
judgment of the High Court of Calcutta is set aside. The appellant shall be entitled
to costs of Rs. 50,000.”
(emphasis added)
12. Since the liability of a guarantor is co-extensive with that of the principal debtor
and not in the alternative, it cannot be said that proceedings in the NCLT against the
principal debtor can be a bar to institution or continuation of proceedings against the
guarantor under the SARFAESI Act.
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13. The question as to whether the respondent/Bank can proceed against a


guarantor even after initiation of proceedings under the IB Code also stands settled.
As correctly pointed out by Mr. Kapur, learned counsel appearing for the
respondent/Bank, the said issue is squarely covered by the judgment of the Supreme
Court in State Bank of India (supra). Paras 20 and 25 of the said decision that answer
the issue raised by Mr. Sethi, Senior Advocate against him, read as under:—
“20. Section 14 refers to four matters that may be prohibited once the
moratorium comes into effect. In each of the matters referred to, be it institution or
continuation of proceedings, the transferring, encumbering or alienating of assets,
action to recover security interest, or recovery of property by an owner which is in
possession of the corporate debtor, what is conspicuous by its absence is any
mention of the personal guarantor. Indeed, the corporate debtor and the corporate
debtor alone is referred to in the said section. A plain reading of the said
section, therefore, leads to the conclusion that the moratorium referred to
in Section 14 can have no manner of application to personal guarantors of a
corporate debtor.
XXX XXX XXX
25. Section 31 of the Act was also strongly relied upon by the
respondents. This section only states that once a resolution plan, as
approved by the Committee of Creditors, takes effect, it shall be binding on
the corporate debtor as well as the guarantor. This is for the reason that
otherwise, under Section 133 of the Contract Act, 1872, any change made to the
debt owed by the corporate debtor, without the surety's consent, would relieve the
guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor
cannot escape payment as the resolution plan, which has been approved, may well
include provisions as to payments to be made by such guarantor. This is perhaps
the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36
(2) referred to above, require information as to personal guarantees that have been
given in relation to the debts of the corporate debtor. Far from supporting the
stand of the respondents, it is clear that in point of fact, Section 31 is one
more factor in favour of a personal guarantor having to pay for debts due
without any moratorium applying to save him.”
(emphasis added)
14. The view expressed by the Supreme Court amply demonstrates that neither
Section 14 nor Section 31 of the IB Code place any fetters on Banks/Financial
Institutions from initiation and continuation of the proceedings against the guarantor
for recovering their dues. That being the position, the plea taken by the counsel for the
petitioner that all proceedings against the petitioner, who is only a guarantor, ought to
be stayed under the SARFESI Act during the continuation of the Insolvency Resolution
process qua the Principal Borrower, is rejected as meritless. The petitioner cannot
escape her liability qua the respondent/Bank in such a manner. The liability of the
principal borrower and the Guarantor remain co-extensive and the respondent/Bank is
well entitled to initiate proceedings against the petitioner under the SARFESI Act
during the continuation of the Insolvency Resolution Process against the Principal
Borrower.
15. In view of the above discussion, we do not find any merit in the writ petition,
which is accordingly dismissed alongwith the pending application.
———
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