Dhananjay Adnyanarav Bhosale vs The Solapur District Central ...
- CitationCompany Appeal (AT) (Insolvency) No. 968 of 2024
Ratio decidendi
The rule this decision rests on
The Adjudicating Authority's observations in its order of 05.04.2024 do not bind the Adjudicating Authority at the Section 100 stage: any observation in that order cannot be treated as an expression of opinion, and the Authority must consider and decide all objections raised by the appellant, including objections to the characterisation of the instrument as a deed of guarantee, in accordance with law. Following the Supreme Court's decision in Dilip B. Jiwrajka, all questions of fact and law relating to adjudication are to be examined at the Section 100 stage of the Insolvency and Bankruptcy Code, 2016, and a personal guarantor is entitled to raise all such objections there.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Dilip B. Mane ....Appellant Vs. Solapur District Central Cooperative Bank Ltd. & Anr. ...Respondents For Appellant Mr. Sandeep Bajaj, Mr. Swetab Kumar, Mr. Devansh Jain, Mr. Mayank Biyani, Advocates. For Respondent
WITH
Company Appeal (AT) (Insolvency) No. 966 of 2024
In the matter of:
Smt. Jayashri Dilip Mane ....Appellant Vs. Solapur District Central Cooperative Bank Ltd. & Anr. ...Respondents For Appellant Mr. Sandeep Bajaj, Mr. Swetab Kumar, Advocates. For Respondent
WITH
Company Appeal (AT) (Insolvency) No. 967 of 2024
In the matter of:
Shri. Dhananjay A. Bhosale ....Appellant Vs. Solapur District Central Cooperative Bank Ltd. & Anr. ...Respondents For Appellant Mr. Sandeep Bajaj, Mr. Swetab Kumar, Advocates. For Respondent 2
ORDER
(Hybrid Mode)
17.05.2024: These appeals have been filed by the personal guarantors of the corporate debtor challenging the same order dated 05.04.2024.
2. Shri Bajaj, Counsel for the Appellant submits that the Appellant undertaking purported to be signed by the appellant has been wrongly treated by the Adjudicating as deed of guarantee. It is submitted that the undertaking cannot be treated as personal guarantee.
3. Be that as it may the Hon'ble Supreme Court in Dilip B. Jiwrajka has already held that all issues regarding facts and law regarding adjudication has to be examined at the stage of Section 100 of the IBC.
4. We are of the view that it is open for the appellant to raise all objections including objections regarding guarantee. We make it clear that any observation made in the order dated 05.04.2024 cannot be treated to any expression of the opinion by the Adjudicating Authority and Adjudicating Authority at stage of Section 100 shall consider all objections raised by the Appellant and decide the same in accordance with the law. Appeals are disposed of accordingly.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
[Arun Baroka] Member (Technical)
Anjali/nn
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