All petitions challenging the IBC provisions relating to personal guarantors transferred to Supreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has directed that all the Writ Petitions that are pending in the High Courts pertaining to the challenge to the Notification dated 15.11.2019, by which Part III of the Insolvency and Bankruptcy Code, 2016 and other provisions in so far as they relate to personal guarantors to corporate debtors have been brought into force, be transferred to the Supreme Court.

Stating that transfer of the Writ Petitions to this Court would avoid conflicting decisions by the High Courts, the Court said,

“The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by this Court to avoid any confusion, and to authoritatively settle the law. Considering the importance of the issues raised in the Writ Petitions which need finality of judicial determination at the earliest, it is just and proper that the Writ Petitions are transferred from the High Courts to this Court.”

Directing the Registries of the High Courts to transmit the records of the Writ Petitions forthwith, the Court also directed that no further Writ Petitions involving the challenge to the Notification dated 15.11.2019 by which Part III of the Insolvency and Bankruptcy Code, 2016 and other provisions in so far as they relate to personal guarantors to corporate debtors have been brought into force shall be entertained by any High Court.

“The interim orders passed by the High Courts, if any, shall continue till further orders.”

By a Notification dated 15.11.2019, the Ministry of Corporate Affairs brought into force the following provisions of the Insolvency and Bankruptcy Code, 2016 insofar as they related to ‘personal guarantors to corporate debtors’ with effect from 01.12.2019: –

  1. Clause (e) of Section 2;
  2. Section 78 (except with regard to fresh start process) and Sections 79;
  3. Sections 94 to 187 (both inclusive);
  4. Clause (g) to Clause (i) of sub-section (2) of Section 239
  5. Clause (m) to Clause (zc) of sub-section (2) of Section 239;
  6. Clause (zn) to Clause (zs) of sub-section (2) of Section 240; and
  7. Section 249

[Insolvency and Bankruptcy Board of India v. Lalit Kumar Jain,  2020 SCC OnLine SC 884, decided on 29.10.2020]

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