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Ramesh Kumar Chugh vs Assets Care & Construction Enterprises ...

National Company Law Appellate Tribunal15 October 2024Ashok Bhushan

Ratio decidendi

The rule this decision rests on

The interim moratorium under Section 96 of the Insolvency and Bankruptcy Code, 2016 operates in respect of a debt, not in respect of a debtor, and so it attaches only to the debt for which the Section 95 application has been filed and the security interest created in respect of that debt. Where a Section 95 application is filed against an individual as personal guarantor of an operational debt, the interim moratorium does not extend to assets held in the name of a partnership firm of which he is a partner, against which no Section 95 application has been filed, merely because he is a partner and purportedly triggered the firm's dissolution. The assets and properties of a partnership firm are not the personal property of an individual partner: a partner has no right, title or interest in the firm's assets so long as the firm subsists, and on dissolution is entitled only to the surplus after the firm's liabilities are met in the agreed share. A firm's assets therefore cannot be treated as subject to a partner's personal guarantee liability merely because a dissolution notice has been issued. The non-obstante clause in Section 238 of the Code gives the Code priority over other laws, but Section 178 (priority in distribution of a partnership firm's debts) has no application to assets outside the moratorium, so a secured creditor may proceed under the SARFAESI Act against a firm's mortgaged property where the interim moratorium does not cover that property.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 1726 of 2024

[Arising out of the Impugned Order dated 03.07.2024 passed by the Adjudicating Authority, National Company Law Tribunal, New Delhi Bench-VI in I.A. No. 317/2024 in C.P. (IB) No. 10/ND/2024]

In the matter of: RAMESH KUMAR CHUGH R/o.: 595-598, Sector 11-12, HUDA Colony, Panipat, Haryana-132103 Email: rameshkumarchug8@gmail.com ...Appellant

Versus

ASSETS CARE & CONSTRUCTION ENTERPRISES LIMITED Regd. Office: 14th Floor, Eros Corporate Tower, Nehru Place, New Delhi-110019 Email: acre.arc@acreindia.in ...Respondent

Present :

For Appellant : Mr. Mohit Chaudhary and Prakhar Mithal, Advocates.

For Respondent : Mr. Neeraj Malhotra, Mr. R.P. Agrawal, Ms. Reema and Mr. Nimish Kumar, Advocates. ORDER

(Hybrid Mode)

Per: Barun Mitra, Member (Technical)

The present appeal filed under Section 61 of Insolvency and Bankruptcy

Code 2016 ('IBC' in short) by the Appellant arises out of the Order dated

03.07.2024 (hereinafter referred to as 'Impugned Order') passed by the

Adjudicating Authority (National Company Law Tribunal, New Delhi Bench-VI)

in I.A. No. 317/2024 in C.P. (IB) No. 10/ND/2024. By the impugned order, the

Adjudicating Authority has dismissed I.A. No 317 of 2024 filed by the Appellant

seeking restraint on the Respondent in the conduct of auction of sale notices

dated 15.12.2023 under SARFAESI Act. Aggrieved by the impugned order, the

present appeal has been preferred by the Appellant.

2. We have heard Shri Mohit Chaudhary, Ld. Counsel appearing for the

Appellant and Shri Neeraj Malhotra, Ld. Senior Counsel representing the

Respondent.

3. The Ld. Counsel for the Appellant outlining the facts of the case submitted

that a Company Petition under Section 95 of the IBC was filed by Operational

Creditor-White Line Enterprises against Mr. Ramesh Kumar Chugh-Appellant

who stood as a Personal Guarantor for repayment of the operational debt owed

by M/s Sahil Home Loomtex Pvt. Ltd. With the filing of Section 95 petition on

22.12.2023, interim moratorium under Section 96 of IBC commenced and an

Interim Resolution Professional was appointed in the Section 95 proceedings

vide order dated 12.02.2024 of the Adjudicating Authority. The Appellant-Mr. Page 2 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 Ramesh Kumar Chugh ("RKC" in short) was also a partner in a partnership firm

named M/s Sheena Exports which firm had availed of loan facilities from HSBC

and Citi Bank. The Appellant was also a Guarantor to loan facilities given by

PNB and IDBI to M/s Sheena Textile Ltd. ("STL" in short). Subsequently, HSBC,

Citi Bank, PNB and IDBI had assigned the loans given to M/s Sheena Exports

and STL along with underlying securities in favour of Respondent-Assets Care

& Construction Enterprises Ltd. ("ACRE" in short). Due to non-repayment of

debt, the Respondent had put up three properties for auction on 22.01.2024 in

respect of M/s Sheena Exports for which sale notices were issued on

15.12.2023. In respect of STL, one property was put on auction on 22.01.2024

by the Respondent vide sale notice dated 15.12.2023. The Second sale notice

was issued on 01.02.2024. For convenience, we propose to collectively call these

properties as 'subject property'.

4. It was submitted that the partnership firm, named M/s Sheena Exports,

comprised of four partners including RKC-Appellant who enjoyed 25% share in

the profits in terms of their Partnership Deed dated 01.04.2023. The Appellant

had given a notice on 06.02.2024 to the remaining three partners regarding

dissolution of the partnership firm. It was contended by the Appellant that the

Adjudicating Authority has failed to appreciate that the partnership firm has

been dissolved by virtue of notice dated 06.02.2024 and post dissolution, the

liability of the partnership firm shifted on to the partners of the partnership firm

by virtue of Section 45 of the Partnership Act. Submission was therefore pressed

by the Ld. Counsel of the Appellant that the notice for auction of the

aforementioned properties issued by ACRE under Rule 8(6) of the Security Page 3 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 Interest (Enforcement Rules), 2002 was in conflict with interim moratorium

operating under Section 96 of the IBC.

5. It was canvassed by the Ld. Counsel of the Appellant that though Section

48 of the Partnership Act provides the mode of settlement post dissolution of the

partnership firm which mode gives priority to repayment of the debts of the

partnership firm, however, since interim moratorium under Section 96 had come

into operation qua the Appellant, in such a scenario, Section 178 of IBC would

prevail. Section 178 of the IBC gives priority to the payment of debts of the

partnership firm over personal debts. Since IBC is a special legislation, by virtue

of Section 238 of IBC it would prevail over the Partnership Act. Hence, if the sale

of the assets is permitted under Security Interest (Enforcement Rules), this

would amount to violation of the provisions of moratorium under Sections 96

and 178 of IBC.

6. It was contended that when an application is filed under Section 95 of the

IBC, interim moratorium commences from the date of filing the application to all

the debts and during the interim moratorium period any legal action or

proceeding pending in respect of any debt shall be deemed to have been stayed

and the creditors of the debtor shall not initiate any legal action or proceedings

in respect of any debt. Though the initiation of moratorium was intimated to the

Respondent, the Respondent has proceeded ahead in dealing with the assets of

the Appellant in violation of Section 96 of IBC. It was submitted that the

Appellant had therefore filed an application before the Adjudicating Authority to

direct the Respondent to withdraw the notices issued under Rule 8(6) of Security

Interest (Enforcement Rules) and to restrain them from taking any further action Page 4 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 pursuant to these notices in respect of property put to auction which has been

erroneously dismissed by the Adjudicating Authority.

7. Refuting the contentions of the Appellant, the Ld. Sr. Counsel for the

Respondent submitted that the Respondent had filed four Original Applications

before the Debt Recovery Tribunal (DRT), New Delhi. All the four OAs have been

decreed and Recovery Certificates were issued. The outstanding amount in the

four OAs is about Rs 200 Cr. and Recovery Proceedings are pending before the

Recovery Officer, DRT, New Delhi. It was contended that since the property in

question were not owned by the Appellant but stood in the name of M/s Sheena

Exports, the Respondent as a Secured Creditor is entitled to proceed in

accordance with the SARFAESI Act for realisation of its dues by sale of the

property in question. The Respondent has contended that it is not taking action

against the Appellant or his personal property but against the partnership firm.

In support of their contention, the Respondent has relied on the judgment of the

Hon'ble Supreme Court in the matter of Rajendra Bajoria Vs Hemant Kumar

Jalan 2021 SCC OnLine SC 764 ('Bajoria judgement' in short) wherein it has

been held that the partners do not have any right, title or interest in respect of

the assets and properties of a firm so long as the firm is carrying on business.

8. It is the case of the Respondent that the assets and properties of a

partnership firm are distinguishable from the personal/individual assets of the

partners. It is submitted that a partner is not the owner of any assets and

properties of a partnership firm and is entitled only to his share in the profits of

the firm. It has also been contended by the Respondent that the partnership

dissolution notice issued by the Appellant is malafide and was filed with a view Page 5 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 to defeat the rights of the Respondent as the same was issued during the

pendency of the SARFAESI proceedings. It has also been pointed out that even

if the partnership firm M/s Sheena Exports has been dissolved, the Appellant

as one of the partners therein will be entitled to the surplus of sale proceedings

of the assets and properties of the firm, if any, only after meeting the liabilities

of the firm to third parties, in the share ratio as agreed upon in the partnership

deed.

9. It is contended that Section 95 petition was filed by White Line Enterprises

stating that it had supplied goods to one M/s Sahil Home Loomtex Pvt. Ltd.

wherein the Appellant stood as a personal guarantor for repayment of debt owed

by Sahil Home Loomtex. Therefore, when the Section 95 application was not filed

against the partnership firm, consequently, the property and assets of

partnership firm, M/s Sheena Exports did not constitute the subject matter of

Section 95 application. Since M/s Sheena Exports and its properties is unrelated

and unconnected with Section 95 application hence the question of applicability

of interim moratorium does not arise.

10. It is also the contention of the Respondent that the Appellant has

concealed from the Adjudicating Authority the material fact that two

Securitization Application Nos. 17/2024 and 18/2024 have been filed before the

DRT-II, New Delhi, challenging the sale notices dated 15.02.2023. It was

therefore contended that the Appellant is indulging in forum shopping which is

an abuse of the process of law. In SA 17/2024, the stay application has already

been dismissed on 14.08.2024 and the remedy therefore lies by way of appeal to

DRAT and not before the NCLT.

Page 6 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024

11. We have duly considered the arguments advanced by the Learned Counsel

for both the parties and perused the records carefully.

12. The primary question before us for consideration is whether in the

backdrop of Section 95 proceedings under IBC having been initiated against the

Appellant in his personal capacity as a personal guarantor, can the Respondent

be barred from conducting sale of the 'subject property', belonging to a

partnership firm (under dissolution), in which the Appellant is a partner, on

grounds of operation of moratorium under Section 96 of the IBC in respect of

personal guarantee of the Appellant.

13. It is the case of the Appellant that the provisions of interim moratorium

are applicable since the partnership firm had been dissolved by virtue of notice

dated 06.02.2024 and post-dissolution, the liability of the partnership firm had

shifted on to the partners of the partnership firm by virtue of Section 45 of the

Partnership Act. Further, as RKC was one of the partners in the partnership firm

on whom the liability of the partnership firm had, inter alia, devolved post-

dissolution, by virtue of Section 95 proceedings having been initiated against

him, the subject property belonging to the partnership firm (under dissolution)

also stood subjected to the provisions of interim moratorium. Hence it is their

case that the subject property cannot be subjected to sale proceedings by the

Respondent. It is further contended that IBC being a special legislation, with the

operationalisation of the interim moratorium, the provisions of Section 178 of

the IBC which provides the priority to be followed during the distribution of the

Page 7 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 debts of a partnership firm would prevail over Section 48 of the Partnership Act

by virtue of the over-riding provisions of Section 238 of IBC.

14. Per contra, it is the claim of the Respondent that the subject property in

question is not owned by the Appellant as the same stands in the name of M/s

Sheena Exports and therefore the Respondent as a Secured Creditor is entitled

to proceed in accordance with the provisions of SARFAESI Act for realisation of

its dues by sale of property which is mortgaged in their favour by M/s Sheena

Exports. Assertion had also been made that while the three properties put on

auction in respect of M/s Sheena Exports were admittedly owned in the name

of M/s Sheena Exports as a partnership firm, the property put up for auction to

recover loan outstanding against STL, also stood in the name of M/s Sheena

Exports in terms of a judgment dated 22.04.2006 passed by Additional Civil

Judge, Panipat. It is submitted that the assets and the properties of the

partnership firm are distinguishable and separate from the personal/individual

assets of the Partners. The properties in respect of which proceedings have been

taken up under SARFAESI Act are mortgage properties which stand in the name

of the partnership firm and not in the name of Appellant in his personal capacity.

It has been contended by the Respondent that as they are not taking any action

either against Appellant or against any of his personal properties, the interim

moratorium cannot apply to the subject property which has no bearing with the

personal guarantee of the Appellant.

15. In support of their contention, the Respondent has relied on two

judgements. One of them is the Bajoria judgement supra of the Hon'ble Apex

Court wherein it has been held:

Page 8 of 17

Company Appeal (AT) (Insolvency) No. 1726 of 2024 "It is trite law that the partners of a firm are entitled only to the profits of the firm and upon dissolution of the firm they are entitled to the surplus of the sale proceeds of the assets and properties of the firm, if any, after meeting the liabilities of the firm, in the share agreed upon in the partnership deed. The partners do not have any right, title or interest in respect of the assets and properties of a firm so long as the firm is carrying on business. Hence, the plaintiffs as legal heirs of some of the original partners cannot maintain any claim in respect of the assets and properties of the said firm. Their prayer for declaration of co-ownership of the assets and properties of the said firm is not maintainable in law."

The other judgement relied upon is judgment of the Hon'ble High Court of

Allahabad in Onkar Rice Mill vs State of U.P. & Ors 2019 SCC OnLine All

5623 wherein it has been observed that so long as the partnership continues,

no part of the assets of the partnership could be regarded as belonging to any

individual partner and no individual partner can predicate his share in a

particular property belonging to the partnership firm.

16. Having heard the rival contentions of both sides, to answer the above

question outlined at para 12 above, we need to first note the relevant provisions

of IBC contained in Part III of IBC which deal with insolvency resolution and

bankruptcy of individuals and partnership firms.

17. Section 95 provides for filing of application by creditor to commence

insolvency resolution process and the relevant provision reads as follows:

95. Application by creditor to initiate insolvency resolution process.--(1) A creditor may apply either by himself, or jointly with other creditors, or through a resolution professional to the Adjudicating Authority for initiating an insolvency resolution process under this section by submitting an application.

Page 9 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 In the present case, admittedly, White Line Enterprises had filed

C.P.(IB)No.10/ND/2024 invoking Section 95 of the IBC against RKC for standing

as a personal guarantor for repayment of operational debt owed by M/s Sahil

Home Loomtex Pvt Ltd. following which resolution process had commenced.

Clearly, therefore, it is the personal guarantee of the Appellant against which

the Section 95 has been invoked and not against the property of the partnership

firm.

18. This brings us to the statutory provision relating to date of commencement

of moratorium. That interim moratorium shall commence, on the date of

application, in relation to all the debts is provided in Section 96, which reads as

under:

"96. Interim moratorium.--(1) When an application is filed under section 94 or section 95--

(a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and

(b) during the interim-moratorium period--

(i) any legal action or proceeding pending in respect of any debt shall be deemed to have been stayed; and

(ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt.

(2) Where the application has been made in relation to a firm, the interim-

moratorium under sub-section (1) shall operate against all the partners of the firm as on the date of the application.

(3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator."

We have already noticed that by the order of the Adjudicating Authority dated

12.02.2024, interim moratorium had commenced from the date of Section 95

application which is 22.12.2023.

Page 10 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024

19. Going deeper into the provisions of Section 96(1)(a), we find that it provides

that interim-moratorium shall commence on the date of the application in

relation "to all the debts". This is reinforced by Section 96(1)(b) which lays down

that during the moratorium period (i) any legal action or proceeding pending in

respect "of any debt" shall be deemed to have been stayed; and (ii) the "creditors

of the debtor" shall not initiate any legal action or proceedings "in respect of any

debt". The use of the expression "all the debts" and "any debt" are phrases with

a very wide amplitude and it clearly covers debts other than the debt basis which

moratorium has commenced. Though encompassing in nature, the moratorium

relates only to the specific debt and not to the debtor. In addition, we notice the

use of the phraseology of "creditors of the debtor" in Section 96(1)(b)(ii) which

obviously refers to other creditors of the debtor apart from the creditor on whose

application interim moratorium has commenced. Thus, the interim moratorium

under Section 96(1)(b)(ii) creates a prohibition on the other creditors of the debtor

from initiating any legal action in respect of the debt for which Section 95 has

been initiated.

20. We find that the Adjudicating Authority has endeavoured to find out the

nuances and implications of interim moratorium under Section 96 of IBC.

Relying on the judgement of the Hon'ble Supreme Court in Dilip B. Jiwrajka

Versus Union of India MANU/SC/1274/2023 ('Jiwrajka judgment' in short),

the Adjudicating Authority has observed in the impugned order at para 8 that

the scope of interim moratorium under Section 96 of IBC is intended to operate

in respect of a debt only. The relevant para is as extracted below.

Page 11 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 "8. Thus, interim moratorium under Section 96 operates in respect of debt only. The Interim Moratorium u/s 96 of IBC commences upon filing of application under Section 94 or 95 as the case may be. However, the scope of such interim moratorium applies only to stay of any legal action or proceeding pending or that could potentially be initiated by creditors of the debtor only in respect of debt.

9. The applicant has stated that he is a guarantor. It is further an admitted fact that the applicant is partner in the undivided share of the partnership firm. The interim moratorium u/s 96 of the IBC applies on the debt of the guarantor, however the proceedings before Debt Recovery Tribunal are related to the property of the partnership firm which do not belong to the applicant i.e. Mr. Ramesh Chugh."

21. For better appreciation and clarity, at this stage, we may notice the

relevant paragraphs from the Jiwrajka judgment which explains the essence

of interim moratorium under Section 96 of IBC which reads to the effect:

"57. Section 96, as its marginal note indicates, deals with an "interim- moratorium". In terms of section 96, the interim moratorium takes effect on the date of the application. In other words, the very submission of an application under section 94 or section 95 triggers the interim moratorium which then ceases to have effect on the date of the admission of the application (under section 100). The consequences which flow from an interim moratorium are specified in clause (b) of sub- section (1) of section 96. The impact of the interim-moratorium under section 96 is that a legal action or proceeding pending in respect of any debt is deemed to have been stayed and the creditors or the debtors shall not initiate any legal action or proceedings in respect of any debt. The crucial words which are used both in clause (b)(i) and clause (b)(ii) of subsection (1) of section 96 are "in respect of any debt". These words indicate that the interim-moratorium which is intended to operate by the Legislature is primarily in respect of a debt as opposed to a debtor. Clause (b) of subsection (1) indicates that the purpose of the interim moratorium is to restrain the initiation or the continuation of legal action or proceedings against the debt.

58. This must be contra-distinguished from the provisions for moratorium which are contained in section 14 in relation to the corporate insolvency resolution process under Part II. Section 14(1)(a) provides that on the insolvency commencement date, the institution of suits or continuation of Page 12 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 pending suits or proceedings against the corporate debtor, including proceedings in execution shall stand prohibited by an order of the Adjudicating Authority. Clause (b) of sub-section (1) of section 14 empowers the Adjudicating Authority to declare a moratorium restraining the transfer, encumbrance, alienation or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein. Significantly, the moratorium under section 14 operates on the order passed by an Adjudicating Authority. The purpose of the moratorium under section 96 is protective. The object of the moratorium is to insulate the corporate debtor from the institution of legal actions or the continuation of legal actions or proceedings in respect of the debt."

(Emphasis supplied)

22. It is clear from the above judgement that it has distinguished the

provisions of moratorium contained in Section 14 and Section 96 of the IBC and

held that moratorium in respect of Section 96 is intended to operate in respect

of a debt as opposed to a debtor and that the purpose of interim moratorium

under Section 96 is to restrain the initiation or continuation of legal action or

proceedings against the debt. It also does not escape our attention that the

Hon'ble Apex Court has laid emphasis that the "crucial words" used are "in

respect of any debt" both in clause (b)(i) and clause (b)(ii) of Section 96(1). The

moratorium imposed under Section 96 of IBC, 2016, would therefore strictly

apply to the security interest created by the Appellant in his personal capacity

wherein personal guarantee is given in respect of the operational debt qua White

Line Enterprises and will not extend to the cover the subject property being the

property of the partnership firm against which Section 95 had not been invoked.

23. We have gone through the Partnership Deed of M/s Sheena Exports as

placed at pages 320-323 of Appeal Paper Book ("APB" in short) which at Clause

7 provided that the profit of partnership was to be divided amongst the four

Page 13 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 partners equally in the ratio of 25% for each of the four partners. At Clause 8, it

states that the partnership shall not be responsible for any of the liabilities or

losses incurred by any of the partners through their separate business or

profession nor shall take into account profits earned by them. In the present

case it is manifestly clear that the personal guarantee given qua the debt owed

by Sahil Home Loomtex to White Line Enterprises was personal to the Appellant

and not a guarantee given by the partnership firm. We have also noticed the

dissolution notice of the partnership firm was sent by RKC on 06.02.2024 to the

other 3 original partners as may be seen at page 341 of the APB. The Notice of

Dissolution only mentions about dissolving the partnership so that the

assets/liabilities can be distributed in appropriate shares as per the Partnership

Agreement/Deed and makes no mention of the Section 95 application though

the same was clearly filed prior to the notice of dissolution of the partnership

deed. It would be misconstrued to infer that merely because notice for

dissolution of the partnership firm was given by the Appellant entailing the

devolution of liabilities of the partnership on the partners, that the partnership

firm can in turn be said to be saddled with the liabilities arising out of the

personal guarantee of the Appellant.

24. Now coming to the judgements relied upon by the Respondent, we are fully

in agreement with the proposition of law laid down by the Hon'ble Supreme

Court in Bajoria judgment supra that the partners of a firm are entitled only

to the profits of the firm and upon dissolution of the firm they are entitled to the

Page 14 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 surplus of the sale proceeds of the assets and properties of the firm after meeting

the liabilities of the firm in the share agreed upon in the Partnership Deed. The

partners do not have any right, title or interest in respect of the assets and

properties of a firm. We find that in the judgment of the Hon'ble High Court of

Allahabad in Onkar Rice Mill vs State of U.P. & Ors 2019 SCC OnLine All

5623 it has been held that no part of the assets of the partnership could be

regarded as belonging to any individual partner and no individual partner can

predicate his share in a particular property belonging to the Firm. It also held

that share in the properties of the partnership would accrue only after the assets

have been converted into money and that too after the debts and liabilities of the

firm have been paid and discharged. These two judgements definitely come to

the aid of the Respondent that the assets held in the name of the partnership

firm is not the personal property of the Appellant and cannot be subjected to the

provisions of interim moratorium merely because a Section 95 application has

been filed against a partner of the firm in respect of a personal guarantee given

for a party other than the partnership firm.

25. Given this backdrop, we are of the considered view that in the present

facts of the case, the moratorium imposed under Section 96 of IBC would apply

only to the security interest created by the Appellant under the personal

guarantee in his capacity as a personal guarantor with respect to default of

operational debt qua White Line Enterprises. Merely because the Appellant

claims to be an erstwhile partner of partnership firm-Sheetal Exports whose

dissolution has been purportedly triggered by the Appellant, the interim

Page 15 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024 moratorium would not cover the subject property against which SARFAESI

proceedings have been initiated by the Respondent. We have no quarrel with the

contention of the Appellant regarding the overarching nature of Section 238 of

IBC. It is well settled that Section 238 of IBC bestows on IBC the priority over

other laws. Section 238 of IBC provides that the provisions of the IBC shall have

effect, notwithstanding anything inconsistent therewith contained in any other

law for the time being in force or any instrument having effect by virtue of any

such law. This non-obstante clause of Section 238 makes the IBC prevail over

any other law for the time being in force. Be that as it may, we are not persuaded

by the contention of the Appellant that since Section 178 of the IBC gives priority

to the payment of debts of the partnership firm over personal debts, it would

prevail over the Partnership Act and sale of the subject property if permitted

under Security Interest (Enforcement Rules), would tantamount to violation of

the provisions of moratorium under Sections 96 and 178 of IBC. In the present

case, when we have come to the considered view that interim moratorium has

come into play only with respect to the personal guarantee of the Appellant as

personal guarantor and not of the partnership firm, we find no good grounds for

the Adjudicating Authority to have entertained the application of the Appellant

to withdraw the notice issued under Rule 8(6) of Security Interest (Enforcement

Rules) and restrain the Respondent from taking further action on these notices

with respect to subject property having been put to auction.

Page 16 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024

26. In view of the foregoing discussion, we find no cogent grounds to interfere

with the impugned order. The Appeal is devoid of merit and is set aside. No order

as to costs.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical)

Place: New Delhi Date: 15.10.2024

Abdul/Harleen

Page 17 of 17 Company Appeal (AT) (Insolvency) No. 1726 of 2024

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