GI 2020 - Respondent

UNIVERSITY MOOT COURT SELECTIONS, GRAND INTRA, 2020
MEMORIAL ON BEHALF OF THE RESPONDET
ARGUMENTS ADVANCED
[ISSUE I]: THE NOTIFICATION DATED 15.11.2019 EMPOWERS RBS TO HAVE

LOCUS TO INITIATE PARALLEL PROCEEDINGS AGAINST HAPL AND THE
PROFESSOR FOR THE SAME DEBT.
The RBS is a financial creditor1 under Section 5 (7) of the code as he had agreed to sanction
business loan to the tune of Rs. 6,00,00,00,000/- to HAPL2 and due to default in the payment
of debt by HAPL which was owed to RBS, it had initiated CIRP under Sections 6 and 7 of
chapter II of the code against HAPL which is a corporate debtor.Later, the notification dated
15.11.19, which brought in effect part III of the code in relation to personal guarantor to the
corporate debtor, gives locus to RBS to initiate parallel insolvency proceeding under Section
95 read with rule 7 (1) of the ‘Insolvency and Bankruptcy (Application to Adjudicating
Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors)
Rules, 2019 against the professor who is a personal guarantor to HAPL (corporate debtor),
under Section 3 (e) of the rules of the notification.
[I.A]: SUSPENSION OF PARALLEL PROCEEDING WOULD BE ANATHEMA TO THE SCHEME
AND OBJECT OF THE CODE.
The section 953 of part III the code empowers the creditor (RBS) through force of notification
dated 15.11.19, to initiate insolvency resolution process against the personal guarantor of the
corporate debtor who is professor in our case. Along with this, Section 60(2) 4 of the Code
provides that “where a corporate insolvency resolution process or liquidation proceeding of
a corporate debtor is pending before a National Company Law Tribunal, an application
relating to the insolvency resolution or liquidation or bankruptcy of a corporate guarantor
or personal guarantor, as the case may be, of such corporate debtor shall be filed before the
National Company Law Tribunal.” Given this, there is legislative clarity that concurrent
insolvency proceedings can be maintained in respect of the corporate debtor and a guarantor.
Section 60(2) and (3) of the Code together require proceedings against a corporate debtor and
its guarantors to be simultaneously heard by the same Adjudicating Authority.The Committee
on insolvency and bankruptcy was of the view that the Code in fact, envisages initiation of
concurrent proceedings against both a corporate debtor and its sureties. Given this, the
1
Moot Proposition, ¶ 9.
2
3
Insolvency and Bankruptcy Code 2016, s 95.
4
Insolvency and Bankruptcy Code 2016, s 60(2).
1
Committee recommended that a creditor should not be prevented from proceeding against
both the corporate debtor and its sureties under the Code. 5 In addition to statutory provisions
and committee’s recommendation, there have been judgments that are suggestive of the same
idea and further strengthen the same. In State Bank of India V. Ramkrishna, it was held that
“The object of the code is not to allow such guarantors to escape from an independent and
co-extensive liability to pay off the entire outstanding debt, which is why section 14 is not
applied to them”.6Same was established through amendment7 in the code in 2018. In Gouri
Shankar Jain v. Punjab National Bank8, the hon’ble court held that,“Notwithstanding the
pendency of Resolution Plan, a personal guarantor can be proceeded against under section
60 (2) read with 95 and 97 (3) of the code.”And similar position was also maintained in
Essar Steel India Ltd. v. Satish Kumar Gupta9which suggested that insolvency of the personal
guarantor can occur simultaneously to that of corporate debtor.
In light of the above statutory provisions, amendments and judgments, it is manifestly clear
that parallel proceedings against the professor and the HAPL for the same debt is well within
the ambit of law thereby RBS has the locus to do the same and such action is maintainable
[I.B]: THERE IS NO EXCLUSIVE PROVISION IN THE CODE WHICH BARS INITIATING
PROCEEDING AGAINST THE GUARANTOR.

Code does not place a bar upon the creditor to proceed against a personal guarantor prior to
exhausting their remedies against the corporate debtor. On the contrary it provides for the
parallel proceeding before the same forum.10 Simultaneous proceeding will not only honour
the intent of the legislature but also safeguard the interest of stakeholder which is one of the
objects of the code. It is plausible that in the proceeding against the first corporate guarantor
the creditor is unable to realize the complete debt payable and the limitation to proceed
against the other debtor expires. In the meantime, such a practice that forces the creditor to
wait around before initial proceedings against the other debtor, shall give enough time to the
corporate debtor, personal and or corporate guarantor to alienate their asset and wriggle out
of their obligation towards the creditor.
5
Ministry of Corporate Affairs, Report of Insolvency Law Committee (2020) para 6.5.
6
State Bank of India v V Ramakrishnan (2018) 17 SCC 394.
7
THE INSOLVENCY AND BANKRUPTCY CODE (SECOND AMENDMENT) ACT, 2018 NO. 26 OF 2018
sec 10
8
Gouri Shankar Jain v Punjab National Bank 2019 SCC OnLine Cal 7288.
9
Committee of Creditors of Essar Steel Ltd v Satish Kumar Gupta 2019 SCC OnLine SC 1478.
10
MINISTRY OF CORPORATE AFFAIRS NOTIFICATION New Delhi, the 15th November, 2019
2
[I.C]: THE PRINCIPLE OF COEXTENSIVE LIABILITY OF GUARANTOR AND DEBTOR UNDER

CONTRACT ACT, CANNOT BE UNDERMINED.
Under Section 128 of the Indian Contract Act, 1872, the liability of a surety towards a
creditor is coextensive with that of the principal borrower. 11 When a default is committed, the
principal borrower and the surety are jointly and severally liable to the creditor, and the
creditor has the right to recover its dues from either of them or from both of them
simultaneously. Notwithstanding the fact that they may stem from the same transaction, the
two liabilities are distinct12 but not in alternative and both are liable at the same time to the
creditor13“The very object of the guarantee is defeated if the creditor is asked to
postpone his remedies against the surety.” 14 The creditor is at liberty to proceed against
either the debtor alone, or the surety alone or jointly against both the debtor and the surety.
Therefore, restricting a creditor from initiating CIRP against both the principal borrower and
the surety would prejudice the right of the creditor provided under the contract of guarantee
to proceed simultaneously against both of them.
In State Bank Of India V. Rama Krishna case,it was also observed that,“enforcement of
guarantee may not have a significant impact on the debt of corporate debtor (asset of surety
are different from that of debtor) the corporate debtor and personal guarantor are separate
entities and that a corporate debtor undergoing insolvency proceedings under the Code
would not mean that a personal guarantor is also undergoing the same process. As the
guarantor's liability is distinct and separate from that of the corporate debtor, a suit can be
maintained against the surety.”15Also, in 2011 while shedding light on the principle of
double dip the Supreme Court of the UK, while shedding light on these principles in the
matter of Kaupthing Singer and Friedlander Limitednoted that while procuring double
dividend on substantially the same debt against the same estate was barred (‘rule against
double proof’), the same was allowed against two separate estates (‘double dip’).
Therefore, it can be concluded that parallel proceedings against the corporate debtor and the
guarantor for the same debt, are maintainable as their assets are also different and such an
action is in consonance with the rule and regulation of the notification dated 15.11.19 and
therefore in the present case RBS does have the locus to initiate parallel proceedings against
HAPL and the professor.
11
The Indian Contract Act 1872, s 128.
12
Hukumchand Insurance Co Ltd v The Bank of Baroda & Others AIR 1977 Kant 204.
13
JagannathGaneshramAgarwala v Shivnarayan Bhagirath and Ors AIR 1940 Bom 247.
14
Industrial Investment Bank of India Ltd v Biswanath Jhunjhunwal (2009) 9 SCC 478.
15
State Bank of India v VRamakrishnan (2018) 17 SCC 394.
3
[ISSUE II]: THE APPROVAL OF THE RESOLUTION PLAN BY THE NCLT DOES
NOT PROHIBIT THE INITIATION OF PROCEEDINGS AGAINST PROFESSOR IN
CP(IB)-22(ND)/2020.
The respondent humbly submits before the Hon’ble Supreme Court of India that once the
CIRP is concluded and the resolution plan is approved by the adjudicating authority under
section 31 of the IBC, the debt owed by the corporate debtor is settled. No proceedings can
be initiated against the corporate debtor in relation to the debt that is settled. However,
proceedings can be initiated against the guarantor for the recovery of remaining debt amount.
[II.A]: THE APPROVAL OF THE RESOLUTION PLAN BY THE NCLT ON 30.05.2020
MILITATES AGAINST THE PROFESSOR.
It is submitted that once resolution plan is accepted by the member of COC it is then
presented before the Adjudicating Authority for its approval. The Adjudication Authority
upon being satisfied that the resolution plan is in conformity with the provisions of the Code
approves it. The resolution plan so approved is binding on the corporate debtor, creditors,
stakeholders as well as guarantors.16
In the present case also, when ARPL proposed a resolution plan it was accepted unanimously
by the members of COC and subsequently placed before NCLT for its approval. Thereafter,
the plan was approved by NCLT under section 31 of IBC. The said section contemplates that
the resolution plan approved by the Adjudicating Authority is binding on the guarantor.On
the basis of the said provision17, the Supreme Court in the case of SBI v. V. Ramakrishnan18
held that the guarantor cannot be relieved from making payment by virtue of Section 133 19
even if the debt is varied under the resolution plan as the resolution plan is binding on the
guarantor.
Further, the High Court of Calcutta in Gouri Shankar Jain v. Punjab National Bank20 was
faced with the similar question, i.e., whether liability of the personal guarantor is
extinguished upon approval of the resolution plan. The Calcutta High Court observed
that,“liability of the personal guarantor is not extinguished upon approval of the resolution
plan.”
Moreover, in the present case, the resolution plan, which is binding on Professor, specifically
provided that the right of RBS to enforce deed of guarantees.“......22. RBS reserves its rights
16
17
ibid.
18
19
20
4
to proceed against the stakeholders of HAPL under independent contracts if any in terms of
applicable law...”21
[II.B]: APPROVAL OF RESOLUTION PLAN DOES NOT DISCHARGE GUARANTOR UNDER
THE INDIAN CONTRACT ACT, 1872.

Under the Indian Contract Act, 1872, there are various circumstances provided in which the
guarantor may be discharged of its liability towards the creditor. The two circumstances that
require sufficient consideration are as follows:
[II.B.1]: The Contract of Guarantee is an independent contract.
The liability of guarantor is co-extensive with that of principal debtor. 22 Therefore, upon the
default of principal debtor, a right is accrued in favour of creditor against both the principal
debtor and the guarantor. This liability is independent in itself as the contract of guarantee is
an independent contract.23 The guarantor becomes liable towards the entire debt amount for
which the guarantee is provided and can be proceeded against irrespective of whether any
proceedings have been initiated or are pending against the principal debtor. 24 The
expression “co-extensive with that of the Principal Debtor” establishes the maximum extent
of the Surety’s liability. The surety is not only liable for the principal amount but also for the
interest and charges incurred in enforcing the liability. 25The right of the creditor to proceed
against the guarantor is one which is independent of its right to proceed against the principal
debtor.26 Therefore, the proceedings against the principal debtor cannot act as a bar to
proceedings against the guarantor. The creditor can always recover the due amount from the
guarantor which it was not able to recover from the principal debtor. In fact, the Supreme
Court has also recognized this right of creditor in State Bank of India v. V. Ramakrishnan27 by
observing that the object of the IBC is not to allow the guarantor to escape its liability to pay
the debt.
[II.B.2]: An act of creditor, the legal consequence of which is discharge of the principal
debtor.
A guarantor is discharged of its liability towards the creditor if the creditor on its own
instance discharges the principal debtor.28 The essential element that needs to be satisfied is
that the discharge of the debtor should be through a voluntary act of the creditor. If the
21
22
23
BMD (P) Ltd v SVL Ltd [2018] 98 taxmann.com 61.
24
Bal Krishna v Atma Ram AIR 1948 Nag 277.
25
Indian Overseas Bank v G Ramulu (1999) 2 ALD 104.
26
Bank of India v Gupta Infrastructure (India) Ltd 2018 SCC OnLine NCLT 5865.
27
28
5
discharge of debtor is not through a voluntary act of the creditor but due to operation of law,
then the guarantor is not discharged and can be held liable. 29 Any scheme or plan that is
approved by a court or tribunal becomes a statutory scheme and is an act in operation of
law.30
Under the IBC, the debtor is discharged on approval and implementation of resolution plan. It
is submitted that once resolution plan is accepted by the member of COC it is then presented
before the Adjudicating Authority for its approval. The Adjudication Authority upon being
satisfied that the resolution plan is in conformity with the provisions of the Code approves
it.31 Therefore, the principal debtor is discharged under the IBC not on the instance of a
creditor but due to the operation of law, i.e., approval of the NCLT after its satisfaction. The
creditor may or may not be favour of the resolution plan. However, once the same is
approved by the NCLT, the debtor is discharged and the said decision is binding on the
creditor. Thus, the guarantor is not discharged of its liability towards the creditor on the
discharge of principal debtor’s liability under the IBC.
In the present case, the said provision of the Contract Act does not apply as firstly, there has
not been any contract between the RBS being the creditor and the HAPL being the principal-
debtor whereby the principal debtor was released. Secondly, according to second part of
section 134 of the Contract Act, a surety is discharged by any act or omission of the creditor,
the legal consequence of which is the discharge of the principal debtor. The question, which
arises for consideration, is whether an application filed by RBS under section 7 of the IBC
could amount to a “voluntary act” on part of the creditor. The Calcutta High Court observed 32
that a financial creditor filing an application under section 7 of the IBC is exercising
its statutory right and not contractual right. Therefore, the exercise of such statutory right,
which is involuntary in nature, will not alter the contractual obligations of the parties.
Consequently, it can be concluded that in the instant case Professor is not discharged upon
discharge of HAPL by way of an insolvency proceeding.
[II.B.3]: Any variance in terms of the debt.
If the contract between the principal debtor and the creditor is varied without guarantor’s
consent, the guarantor is relieved from its liability to pay off the debt. 33 One such variance
can be a change made to the debt owed by the principal debtor. If such a change is made
29
Maharastra State Electricity Board, Bombay v Official Liquidator, High Court of Ernakulam AIR 1982 SC
1497; JagannathGaneshramAggarwala v Shivnarayan Bhagirath AIR 1940 Bom 247.
30
In reGarner’s Motor Ltd (1937) 1 Ch 594.
31
32
33
6
without the consent of guarantor, the guarantor is relieved from making any payment. Such a
situation may arise in the context of IBC proceedings wherein a reduced return for the debt
may be granted by the resolution plan. This issue has been dealt with by the Supreme Court
in V. Ramakrishna34. The Court, while addressing this issue, placed strong reliance on section
31 of the IBC which states that once the resolution plan is approved it will be binding on all
stakeholders including the guarantors. On the basis of the said provision, it held that the
guarantor cannot be relieved from making payment by virtue of section 133 of the Contract
Act even if the debt is varied under the resolution plan as the resolution plan is binding on the
guarantor as well.35
Therefore, it is concluded that approval of resolution plan under section 31(1) of the Code by
NCLT did not prohibit RBS to initiate insolvency proceeding against Professor under section
95 of IBC.
[ISSUE III]: THAT THE OBLIGATIONS OF PROFESSOR UNDER THE DEED OF
GUARANTEE DATED 15.08.2018 DOES NOT STAND DISCHARGED UNDER
APPLICABLE LAW.
It is humbly submitted before the Hon’ble Supreme Court of India that the obligations of
Professor under deed of guarantee dated `15.05.2018 does not stand discharged under
Applicable Law on the ground that liability of guarantor is co-extensive with that of principal
debtor and the liability of guarantor does not dispense off if debtor is discharged as result of
due process of law.
[III.A]: LIABILITY OF GUARANTOR IS CO-EXTENSIVE WITH THAT OF PRINCIPAL
DEBTOR.
A contract of guarantee is a tripartite agreement which contemplates the principal debtor, the
creditor and the surety.36The idea of a guarantee is to have a second pocket to pay if the first
is empty. The fundamental principle about the surety's liability, as laid down in Section 128 37
is that the liability of the surety is co-extensive with that of the principal debtor. The
expression “co-extensive with that of the principal debtor” shows the maximum extent of the
surety's liability. He is said to be accountable for the whole of the amount for which the
principal debtor is liable.38 The borrower along with the surety is jointly and severally liable.39
34
35
36
Mahabir Shum Sher v Lloyds Bank AIR 1968 Cal 371.
37
38
Indian Over Seas Bank v G Ramulu (1999) 2 ALD 104.
39
Syndicate Bank v K. Manohara AIR 2003 Ker 284.
7
In the RBI's circular dated September 9, 2014 issued with reference to the Master Circular on
Wilful Defaulters DBOD.No.CID.BC.3/20.16.003/2014-15 dated July 1, 2014, clarified that
when a payment default is made by the principal debtor, the bank is entitled to proceed
against the guarantor/surety even without exhausting the remedies against the principal
debtor. In the renowned case of Bank of Bihar v. Damodar Prasad &Anr.40, it was held that
the creditor can proceed against Surety even before proceeding against the Principal Debtor
and hypothecated property. In addition to that it was stated in the case of Industrial
Investment Bank of India Ltd. v. Biswanath Jhunjhunwala41 that very object of guarantee
would be defeated if creditor is asked to postpone the remedy against the surety. The same
was upheld by the Allahabad High Court in U.P. Financial Corporation Vs. GarlonPolyfeb
Industries and Others.42
The surety does not have a right to dictate terms to the creditor as to how he should make the
recovery and pursue his remedies against the principal debtor at his instance. 43In the present
case, the RBS 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.
Moreover, it is not even viable to say that guarantor, herein Professor should only be charged
for the balance amount as it was rightly held in the case of Naba Kishore Sahoo v United
Bank of India44 that the guarantor cannot say that the decree should first be executed against
the borrower and against him only for the balance. Unless there is a specific agreement
between the surety and the creditor to the effect that the principal debtor alone would be
liable in the first instance, the creditor can proceed against the surety to the same extent as if
he were himself the principal debtor. It would not be necessary first to realise the amount
from the principal debtor.45 In case of KailashChandjain v U.P. Financial Corpn46, it was
held that guarantors, who were directors in this case, were not permitted to say that creditor
must first try release the value of unit of the borrower company which it had taken over,
rather creditor in all power can proceed against guarantors.
40
Bank of Bihar Ltd v Damodar Prasad AIR 1969 SC 297.
41
Industrial Investment Bank of India Ltd v Biswanath Jhunjhunwal (2009) 9 SCC 478.
42
UP Financial Corporation vGarlonPolyfeb Industries and Others AIR 2001 All 286.
43
Ram Kishun v State of Uttar Pradesh (2012) 11 SCC 511.
44
Naba Kishore Sahoo v United Bank of India 1995 AIHC 2176.
45
Medisetti Ravi Babu v Pramida Chit Fund(P) Ltd (2003) 2 BC 527.
46
KailashChandjain v UP Financial Corporation AIR 2002 All 302.
8
In nutshell, the liability of guarantor is well established and co-extensive with that of the
debtor, pursuant to which RBS rightly sued guarantor under the applicable law for the said
amount and Professor is under due obligation to pay the same.
[III.B]: LIABILITY OF GUARANTOR DOES NOT DISPENSE OFF IF THE PRINCIPAL DEBTOR
IS DISCHARGED AS RESULT OF DUE PROCESS OF LAW.
The combined analysis of different provision of law would prove that the liability of
Guarantor does not dispense off if the principal debtor is discharged as a result of due process
of law.
[III.B.1]: No effect of Section 134 of ICA.

It is humbly submitted that in Halsbury’s Laws of England, under the chapter dealing with
Bankruptcy and Insolvency47, it has been mentioned that an order of discharge pursuant to a
company being declared as insolvent or bankrupt does not release any person who was surety
or in nature of surety. In re Jacobs48,where it was held by James L. J. that a discharge of a
debtor under a liquidation or a composition is really a discharge in bankruptcy by operation
of law, and will not discharge the surety from his liability.
Further, inMaharashtra State Electricity Board v.Official Liquidator, High Court49 it was
held by the Hon’ble Supreme Court that “The liability of guarantor is absolute and
unconditional. The fact that the Company in liquidation i.e. the principal debtor has gone
into liquidation also would not have any effect on the liability of the Bank i.e. the guarantor.
Under sec. 128 of the Indian Contract Act, the liability of the surety is co-extensive with that
of the principal debtor unless it is otherwise provided by the contract. A surety is no doubt
discharged under sec. 134 of the Indian Contract Act by any contract between the creditor
and the principal debtor by which the principal debtor is released or by any act or omission
of the creditor, the legal consequence of which is the discharge of the principal debtor. But a
discharge which the principal debtor may secure by operation of law in bankruptcy (or in
liquidation proceedings in the case of a company) does not absolve the surety of his liability.”
Similar observation has been followed in Thakur Das v. Phagwa50 wherein it was stated that
the legislative intent of such insolvency and bankruptcy law was to avoid any contradiction
with general principal of contract.This intent of legislation is very well established by
insertion of Sec. 23851 of IBC, which states that IBC shall have overriding effect on other
47
Halsbury’s Laws of England (4th edn, 1989) vol 3, para 880.
48
In re Jacobs98 NY 98 (1885).
49
Maharashtra State Electricity Board v Official Liquidator, High Court 1982 AIR 1497.
50
Thakur Das v Phagwa AIR 1936 Peshwar 150.
51
9
laws. The guaranteeing directions of the company can be proceeded against even when the
company has entered into protection from liability under the Sick Industrial Companies
(Special Provision) Act, 1985.52
Thus, this implies that surety is not discharged when the principal debtor is discharged from
the liability for paying debt on the account of being adjudged as insolvent or an order of
discharge being passed, discharging principal debtor.53
[III.B.2]: No Defence exists pursuant to Section 135 of ICA.
The Supreme Court in the matter of Industrial Finance Corporation of India Ltd v.
Canonnore Blending and Weaving Mills Ltd. and Ors.54held that,“in the event the principal
debtor is discharged of his liability by the creditor with the consent of the surety/guarantor,
the creditor's right of action against the surety stays preserved.” In the present case as per
resolution plan RBS reserves its rights to proceed against the stakeholders of HAPL under
independent contracts if any in terms of applicable law55.Thus, is concluded that RBS has its
right to enforce deed of guarantee against Professor.
[III.B.3]:No Defence pursuant to Section 139 of ICA.
It is submitted that if there is no impairment of surety’s remedy by act or omission of
principal debtor, thus no subsequent discharge of surety. Rowlatt in his book "Law of
Principal and Surety" observed:“A guarantee is not put an end to by reason of the debt
becoming unenforceable against the principal by reason of insolvency or bankruptcy or
limitation, unless it is due to a voluntary act or omission of the creditor contrary to his duty
to the surety.”56Thus, there is not the voluntary act or omission on part of RBS in the existing
circumstances rather it’s by operation of law.57
As in the present case, since there was no explicit arrangement in resolution plan wherein it is
mentioned right of subrogation is curtailed58, due reference must be given to verdict of
Hon’ble Supreme Court in case of Committee Of Creditors Of Essar vs Satish Kumar
Gupta59wherein it is stated right of subrogation can be curtailed only when explicitly
mentioned in resolution plan and that is not the scenario in the present arrangement.
52
RK Dewan v State of UP 2005 All LJ 2067.
53
BN Nanjappa v Sangli Bank Ltd 1998 SCC OnLine Kar 617.
54
Industrial Finance Corporation of India Ltd v Canonnore Blending and Weaving Mills Ltd and Ors AIR 2002
SC 1814.
55
56
Rowlatt, The Law of Principal and Surety (3rd edn, 1936) 277.
57
R Thiagarajan v South Indian Bank Ltd ILR 1987 1 Ker 370.
58
59
10
[III.B.4]:No Defence exist by reason of Change of Management of Company.

The guarantors of a company's loans could not escape liability by reason only of the fact that
the company's management had totally changed. 60 As in the case of State of Gujarat v State
Bank of Saurashtra61 it was held that Guarantor allowed to be sued despite takeover of the
unit of the borrower. Thus, any reliance upon discharge of surety on ground of change of
management of the company as in the present case ARPL took over the management of the
Company62, that lead to novation of company or original agreement was will not sustain.
[ISSUE IV] THE NOTIFICATION BRINGING IN EFFECT PART III OF THE CODE
ONLY IN RELATION TO PERSONAL GUARANTOR TO CORPORATE DEBTOR
IS VALID AND CONSTITUTIONAL.
It is humbly submitted before the Hon’ble Supreme Court that Central Government has
rightly exercised its power of rule-making63 under Sec.64 1(3) of the code to bring in effect
different provision of the code on different date. The Code through the notification makes
several improvements over the existing legislation on individual insolvency and adopts a
more benign approach. Part III of the Code makes provisions for insolvency resolution and
bankruptcy of individuals and partnership firms. To enable implementation of individual
insolvency in a phased manner considering the wider impact of these provisions, it classifies
individuals into three categories, namely, (i) personal guarantors (PGs) to corporate debtors
(CDs), (ii) partnership firms and proprietorship firms, and (iii) other individuals.
The Working Group on Individual Insolvency (WG) 65 holds the view that a phased
implementation of individual insolvency and bankruptcy is the intention of legislature and a
practical necessity and suggested that the provisions of the Code may first be notified for
personal guarantors to CDs. The remaining provisions of Part III of the Code applicable to
other classes may be notified in subsequent phases.
[IV.A]: CONSIDERATIONS TO BE MADE WHILE DELIBERATING UPON CONSTITUTIONALITY
OF LEGISLATION.
Due consideration must be made while deliberating upon the constitutionality of any
legislation.
60
Punjab National Bank v Lakshmi Industrial &Trading Co (P) Ltd AIR 2001 All 28.
61
State of Gujarat v State Bank of Saurashtra (2004) 1 GLR 213.
62
63
In Re Delhi laws Act, 1912 1951 AIR 332.
64
65
A Working Group constituted by IBBI to recommend the strategy and approach for implementation of the
provisions of the Insolvency and Bankruptcy Code, 2016 dealing with insolvency and bankruptcy in respect of
(i) guarantors to corporate debtors i.e. personal guarantors, and (ii) individuals having business, and submit a
report along with the draft rules and regulations.
11
[IV.A.1]: There exists Presumption of Constitutionality in favour of Legislation

It is submitted that in order to declare a legislation unconstitutional, it should be proved that
the legislation is manifestly arbitrary and the burden shall be on the party challenging the said
legislation.66Further,in B.R. Enterprises v State of U.P.67 the Supreme Court observed, “First
attempt should be made by the courts to uphold the charged provisions and not to invalidate
it merely because one of the possible interpretations leads to such a result, howsoever
attractive it may be. Thus, where there are two possible interpretations, one invalidating the
law and the other upholding, the latter should be adopted. For this, the courts have been
endeavoring, sometimes to give restrictive or expansive meaning keeping in view the nature
of the legislation.”This presumption extends to laws imposing reasonable restriction of
Fundamental Rights.68
[IV.A.2]:Judiciary should exercise restraint while examining the Constitutional Validity
of Economic Legislation.
In Bhavesh D. Parish v. Union of India 69 held that in matters of economic policy the
accepted principle is that the courts should not interfere, this Court, while not jettisoning its
jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in
those few cases where the view reflected in the legislation is not possible to be taken at all.
70
Further, the Court in R.K. Garg v. Union of India, held that since economic matters are
essentially empiric and it is based on experimentation therefore it cannot provide for all
possible situations or anticipate all possible abuses and on that account alone it cannot be
struck down as invalid. The Supreme Court followed the same reasoning in Swiss Ribbons
Pvt. Ltd. v. Union of India while dealing with IBC.71 The Supreme Court of US also
suggested that the Court must defer to legislative judgment in matters relating to social and
economic policies and must not interfere, unless the exercise of legislative judgment appears
to be palpably arbitrary.72
[IV.B]:THE NOTIFICATION SATISFIES THE TEST OF CLASSIFICATION
It is most respectfully submitted that power of delegation is a constituent element of the
legislative power.73 The Government of India has rightly exercised its power of rule-making
66
Charanjit Lal v Union of India AIR 1951 SC 41.
67
BR Enterprises v State of UP (1999) 9 SCC 700.
68
PUCL v Union of India (2004) 2 SCC 476.
69
Bhavesh D Parish v Union of India (2000) 5 SCC 471.
70
RK Garg v Union of India (1981) 4 SCC 675.
71
Swiss Ribbons (P) Ltd v Union of India (2019) 4 SCC 17.
72
Munn v Illinois 1876 SCC OnLine US SC 4.
73
VasanlalMaganbhaiSanjanwala and the Pratap Spinning and Manufacturing Co Ltd v State of Bombay AIR
1961 SC 4; M/s Tata Iron and Steel Co Ltd v Workmen of M/s Tata Iron and Steel Co Ltd AIR 1972 SC 1917.
12
by enforcing the provision in phased manner rather than in toto as the classification is
reasonable and constitutional74 herein is based on intelligible differentia and is in consonance
with object of the Code.
[IV.B.1]:The Classification is based on Intelligible Differentia.
For a legislation to be reasonable, it must pass the twin test of reasonableness- It should not
be arbitrary and must be based on an intelligible differentia. The classification must have a
reasonable nexus with the object sought to be achieved 75. The Corporate Debtor often has
guarantors. For comprehensive corporate insolvency resolution and liquidation, it is
necessary that insolvency of the Corporate Debtor as well as its guarantors are considered
together to the extent possible. Sec. 12876 of the Indian Contract Act, 1872 enables a creditor
to pursue remedy against both the principal borrower and the guarantor, as liability of a
guarantor is co-extensive with that of the principal borrower. Thus, in case of default by
principal debtor, the creditor may choose to pursue remedy against the guarantor for
repayment of debt. In effect, insolvency proceedings of a Corporate Debtor and its guarantors
are closely linked to each other.
In Ferro Alloys Corporation Ltd. Vs. Rural Electrification Corporation Ltd, the court upheld
that without initiating any CIRP against the principal borrower, it is always open to the
financial creditor to initiate CIRP under Section 777 against the corporate guarantors, as the
creditor is also the financial creditor qua corporate guarantor. 78 Guarantors could be
individuals (personal guarantors) or corporates (corporate guarantors to CDs). The
mechanism for insolvency resolution of corporate guarantor, being CDs, is already in place.
Resolution of insolvency of personal guarantors complements corporate insolvency regime,
particularly when there is high incidence of applications being filed in respect of preferential,
fraudulent, undervalued and extortionate transactions. Absence of a regime for resolution of
insolvency of personal guarantors distorts the choice of borrowers and lenders. Thus, the
impugned notification puts personal guarantors and corporate guarantors at the same level
playing field.
In the case of Committee of Creditors of Essar Steel India Limited through Authorised
Signatory v. Satish Kumar Gupta79, the apex court held that the claims of creditors against the
personal guarantors of the corporate debtor would not extinguish even after the resolution
74
Basant Kumar Sarkar v Eagle Rolling Mills AIR 1984 SC 1260.
75
LaxmiKhandsari v State of Uttar Pradesh (1981) 2 SCC 600.
76
77
78
Ferro Alloys Corporation Ltd v Rural Electrification Corporation Ltd
79
13
plan for the corporate debtor was approved. Thus, the IRP rules and the Bankruptcy rules will
allow the creditors of the corporate debtor to continue with the recovery proceedings against
the personal guarantors even after the completion of the corporate insolvency resolution
process (CIRP) of the corporate debtor. It has been held that classification among persons is
permissible if it is reasonable 80. It was an urgent need to bring in effect part III of the code in
respect of personal guarantor of the corporate debtor, to fill in all the lacunae created through
judgments, to aid the corporate insolvency resolution process against the corporate debtor
efficiently under chapter II which was already in effect and to balance the interest of all
stakeholders. Also, working group has suggested that it is necessary to have separate rules
and regulations for each of the three classes of individuals and rules for the other classes will
be brought at later stage following a phased manner. Hence, there is an intelligible differentia
in classifying personal guarantor to the corporate debtor from other classes mentioned in part
III of the code.
[IV.B.2]:The Classification made has Nexus with Object of the code.
In order to satisfy the test of classification the policy underlying the statute must be
ascertained.81 The classification done is in sync with the object of the code and promotes the
same. Resolution of both corporate and individual insolvency have certain common
objectives, such as increasing the supply of credit by increasing lenders’ expected returns and
discourage creditors from racing to be first to collect when debtor is in financial distress.
The insolvency proceeding against the personal guarantors is a huge relief to the creditors as
it will make easy for them to realize their debts. Till now the creditors used to claim their
rights in the Debt Recovery Tribunals (DRTs) which could not provide them with quick
relief. Now, the Insolvency proceedings under the regime of the Code will allow the creditors
to realize their debts in less time. The Supreme Court in Biswambhar Singh v. State of
Orissa82 held while rejecting a challenge based out of Article 14 83 of the Indian Constitution,
had held such a provision cannot be considered discriminatory as long as the legislative
discretion is exercised within the contours of the object of the statute. Therefore, it is
concluded that the classification done under the notification is based on intelligible differentia
and has nexus with the object of the code therefore the notification does not violate Article 14
of the constitution.
80
TMA Pai Foundation v State of Kerala AIR 2003 SC 355.
81
KangshariHaldar v State of West Bengal AIR 1960 SC 457.
82
Biswambhar Singh v State of Orissa AIR 1954 SC 139.
83
The Constitution of India 1950, art14.
14
[IV.C]: MEANINGFUL READING OF THE IBC, GUARANTOR RULES AND GUARANTEE

REGULATIONS SHALL ESTABLISH THAT PART III HAS BEEN SPECIFICALLY MADE
APPLICABLE TO GUARANTORS.
It is most respectfully submitted that Part III of the Code is applicable to debtors who are
individuals or partnership firms. It is, however, important to note that personal guarantors are
individuals. And to enable both debtor and creditor to participate with the least possible delay
and expense it is necessary that personal guarantor be governed under the provision of part III
of the code which deals with the insolvency proceeding of the individuals. The insolvency
resolution process under the Code provides certain minimum protection to them. Resolution
of individual insolvency has few other additional objectives, such as, provision of partial
consumption insurance for debtors, fresh start which incentivizes the debtors to work after
filing for bankruptcy. Thus, while operationalizing insolvency resolution of personal
guarantors, it is necessary to ensure that the individual has the minimum protection available
under the law. The recent amendment (2018) to Section 2(e) of the Code inserts the words
‘personal guarantor to corporate debtor’ despite the definition of personal guarantor under
Section 5(22)84 of the code because the later was applicable only to chapter II of the code but
addition of ‘personal guarantor to corporate debtor’ to other classes in Section 2(e), is
suggestive of the idea that insolvency proceeding of personal guarantor to corporate debtor
should be governed by part III of the code as other classes in Sec 2 (e). Accordingly, a
personal guarantor should only be considered a ‘debtor’ for the purposes of Part III of the
Code, when the liability of such personal guarantor has arisen in law. It can be clearly
inferred that personal guarantor of the corporate debtor should be governed through
individual insolvency proceeding under part III of the code, was the intention of the
legislator. Therefore, meaningful reading of Rule 7 along with Rule 3(e) of the Impugned
Rules purport to permit a demand notice and application under Section 95 to be issued
against a guarantor, which is defined under Rule 3(e) as a debtor who is a personal guarantor
to a corporate debtor. Thus, combined evaluation of impugned rules proves that that Part III
has been specifically made applicable to Guarantors.
84
15
[IV.D]: PART III DO NOT AFFECT THE CIRP PROCESS OF HAPL.

The intention of the legislature by adding ‘personal guarantor to corporate debtor’ to section
2(e)85 of the code through 2018 amendment was simple that insolvency proceeding of this
recently added category, should be governed under the provisions of part III of the code.
‘Debtor’ mentioned in section 101 (2) (c) and S. 96 (b) (ii), refers to “guarantor” in section 3
(e)86 of the impugned rules. It is important to mention here that the combined reading of
section 96 and section 101 of part III of the code, gives an idea that this part deals only with
the insolvency proceeding of the classes mentioned in section 2 (e), therefore the debt in S.
96 means a liability due from the guarantor 87(here professor) to RBS as per section 3(11).
The corporate debtor and personal guarantor are separate entities and the guarantor's liability
is distinct and separate from that of the corporate debtor. 88 We also know that insolvency
procedures are different in part II and III of the code and the impugned notification only
brings the insolvency proceedings against the corporate debtor and the personal guarantor
under the same forum not through the same procedure. The purpose of impugned rules and
regulation is to aid the insolvency proceeding against the corporate debtor so that it can be
completed in time bound manner and considering the object of the code where time is of
essence, any provision which hinders or stays the CIRP proceeding of corporate debtor, will
only result in the more time consumption which cannot be the intention of the legislature.
Therefore applicability of moratorium under section 96 and 101 is only in respect of the
assets of the surety and not thatof the corporate debtor. Hence insolvency proceeding against
the professor won’t affect the CIRP proceeding against the corporate debtor.
[ISSUE V]: THE HON’BLE DELHI HIGH COURT HAS NO THE JURISDICTION
TO ENTERTAIN THE W.P. (C) 3911/2020.
It is humbly submitted before the hon’ble Supreme Court that the Delhi High Court does not
have writ jurisdiction in the present matter on the basis of grounds mentioned below:
85
THE INSOLVENCY AND BANKRUPTCY CODE (AMENDMENT) ACT, 2017 NO. 8 OF 2018 section 2
(e)
86
3 (e) of the impugned rule[ the Insolvency and Bankruptcy (Application to Adjudicating Authority for
Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019.]
87
Ibid.
88
Ram krishna
16
[V.A]: IBC IS A COMPLETE CODE AND ELUDES THE ROLE OF HC IN THE ADJUDICATORY
MECHANISM.
It is beyond any doubt that IBC, 2016 is a complete Code in itself. It is an exhaustive code on
the subject matter of insolvency in relation to corporate entities and others. 89 The code
provides a three-tier mechanism namely (i) the NCLT, which is the Adjudicating
Authority (ii) the NCLAT which is the appellate authority (S. 61) and (iii) the Supreme Court
(S. 62) as the final authority, for dealing with all issues that may arise in relation to the
reorganization and insolvency resolution of corporate persons.
The exclusion of HC from the adjudicatory framework of the IBC is manifestly clear from
the bare provisions like sections 60 (5) (c), 63 and 231of the code. The provisions of the IBC
enumerating powers of the NCLT oust the powers of other forums from exercising
jurisdiction over such functions. Section 23190 was interpreted by the Delhi HC in the case of
Liberty House Group Pte Ltd v. State Bank of India and Others 91whereby the court
categorically refrained from exercising jurisdiction with respect to the action taken by the
NCLT in pursuance of the powers conferred upon it by the IBC itself. Also, the NCLT,
Kolkata, in the case of Aryan Mining and Trading Corporation Private Limited v. Ganesh
Sponge Private Limited,92 stated that any injunction granted by any court, shall be nullity in
law and cannot be given effect to, by virtue of Section 231 of the IBC. Therefore, the
legislature was of the firm view that the any issue arising out of the IBC can only be looked
into by NCLT, NCLAT and the SC and ousts the jurisdiction of HCs in toto.
[V.B]: INTERVENTION BY THE HIGH COURT WOULD RENDER THE OBJECT OF THE CODE
MEANINGLESS.
In cases concerning bankruptcy and insolvency, time is of essence. This is so because the
recoverable money from a depreciating asset systematically declines due to depreciation over
time. The average time for disposal of cases in high courts is much higher, 93 than what is
required for an efficient insolvency regime. The writ will obviously be dealt in ordinary
course of business at the high courts. This will be very much counterproductive for the
regime. Adjudication of matters pertaining to the IBC by the HC will impinge upon the time
bound nature of the proceedings under it.
89
Innoventive Industries Ltd v ICICI Bank (2018) 1 SCC 407.
90
91
Liberty House Group Pte Ltd v State Bank of India and Others 2019 SCC OnLine Del 7256.
92
Aryan Mining and Trading Corporation Private Limited v Ganesh Sponge Private Limited 2017 SCC OnLine
NCLT 7514.
93
Pradip Thakur, ‘High Court Judges Get Just 5-6 Minutes to Decide Cases, says Study’The Times of India(7
April 2016).
17
It also appears that intervention by High Courts in exercise of the power of judicial review
over administrative action might open a floodgate of litigation before high courts around the
country and thus, render the legal remedy of appeal before the NCLAT/DRAT redundant,
which would ultimately impact the time-bound insolvency resolution under IBC.
[V.C]: THE HIGH COURT CANNOT ASSUME JURISDICTION UNDER ARTICLE 226 IN THE
PRESENT MATTER.
Unless a specific constitutional remedy is sought, the high court cannot assume jurisdiction
under article 226. Wherever any the legislature provides for statutory adjudication of rights
and dispensation of claims through specific enactments, the courts cannot invoke writ
jurisdiction as that shall be tantamount to defeating the legislative intent and shall impede the
parliament’s legislative competence.94 Therefore, the high court’s being bound by article 141
are obliged to dismiss all cases seeking relief under article 226/227 in direct contravention to
an available statutory remedy.
[V.D]: THE IBC PROVIDES FOR THE ALTERNATE AND EQUALLY EFFICACIOUS REMEDIES.
A general rule is that the statutory remedy should be exhausted before approaching the writ
court.95 The Insolvency Bankruptcy Code is an exhaustive code that supersedes all other
statutes by virtue of the non-obstante the Code. 96 Relying on case of Minerva Mills where it
was held, “it would be within the competence of Parliament to amend the Constitution so as
to substitute in place of the High Court, another alternative institutional mechanism or
arrangement for judicial review, provided it is no less efficacious than the High Court.” 97The
court in Sampath Kumar v. Union of India 98, held that “the tribunal should be a real
substitute of the high court not only in form and de jure, but in content and de facto.”
NCLT is the only court of first instance in respect of the area of insolvency
The NCLT is a specialized Tribunal constituted for the purpose of speedier and effective
regulation of the affairs of the companies and has the exclusive jurisdiction to deal with the
affairs of the company.99NCLT is empowered by the parent statute to adjudicate upon the all
the matter relating to insolvency under section 60 (5) (c) of the code.
The SC in Essar Case100 held that “Section 60(5) (c) of the IBC is in the nature of a residuary
jurisdiction vested in the NCLT so that the NCLT may decide all questions of law or fact
94
Commissioner of Income Tax v Chhabil Das Agarwal (2014) 1 SCC 603.
95
Law Commission of India, 272th Report on Assessment of Statutory Framework of Tribunals in India (2007).
96
Innoventive Industries Ltd v ICICI Bank (2018) 1 SCC 407.
97
Minerva Mills v Union of India (1986) 4 SCC 222.
98
Sampath Kumar v Union of India (1985) 4 SCC 458.
99
SAS Hospitality Pvt Ltd v Surya Construction Pvt Ltd 2018 SCC OnLine Del 11909.
100
18
arising out of or in relation to insolvency resolution or liquidation under the Code.”Further,

in the case of L Chanrakumar v. Union of India, it has been made clear that the tribunals are
competent to hear matters where the vires of statutory provisions are questioned and
consequently, also have the power to test the vires of subordinate legislations and rules. It
will not be open for litigants to directly approach the High Court even in cases where they
question the vires of statutory legislations by overlooking the jurisdiction of the Tribunal
concerned. To hold that the Tribunals have no power to handle matters involving
constitutional issues would not serve the purpose for which they were constituted. 101 Also, in
a case Bombay High Court had dismissed the writ petition on ground of availability of
alternate and equally efficacious remedies under Section 61 of IBC to prefer an appeal before
NCLAT and, a further remedy under Section 62 of IBC to prefer an appeal before the
Supreme Court from NCLAT.102
The court must have a good and sufficient reason to bypass the alternative remedy provided
by the statute.103 Existence of an alternative remedy would be a good ground for not
entertaining the petition.104 Where an alternative remedy is available to the person, the court
may not exercise the power under Article 227 105 where remedy by way of appeal and revision
was available, a High Court cannot assume jurisdiction. 106In several cases, both in England
and India, the ancient rule stated by Willes, J., in Wolverhampton New Waterworks
Co. v. Hawkesford107 to the effect that where a liability not existing at Common Law is
created by a statute, which also gives a special and particular remedy for enforcing it, the
remedy provided by the statute must be followed, has been quoted with approval. For
instance, Union Bank of India v. SatyawatiTandon108 held that the availability of a remedy of
appeal under the DRT Act, 1993 and SARFAESI Act, 2002 should deter the High Court from
exercising the jurisdiction under Article 226. Similarly, the availability of remedy of appeal
under Section 173 of the Motor Vehicles Act, 1988 as against an award of the Accidents
Claims Tribunal was held as sufficient for the High Court to refuse to exercise its supervisory
jurisdiction.109
101
L Chandra Kumar v Union of India (1997) 3 SCC 261.
102
Anthony Raphael Kallarakka v NCLT 2018 SCC OnLine Bom 13865.
103
CCE v Dunlop India Ltd AIR 1985 SC 330.
104
State of Bihar and Ors v Jain plastic and chemicals Ltd (2002) 1 SCC 216.
105
Ram Roop v Bishwa Nath AIR 1958 All 456.
106
SwetambarSthanakwasi Jain Samiti v Alleged Committee of Management Sri RJI College (1996) 3 SCC 11.
107
Wolverhampton New Waterworks Co v Hawkesford (1859) 6 CBNS.
108
Union Bank of India v SatyawatiTandon 2010 8 SCC 110.
109
SadhanaLodh v National Insurance Co (2003) 3 SCC 524.
19
The NCLT was intended to function as an independent body with the full jurisdiction to
adjudicate all matters arising out of and incidental to the CIRP. 110 This plenary right of the
High Court to issue a prerogative writ will not normally be exercised by the Court to the
exclusion of other available remedies unless such action of the State or its instrumentality is
arbitrary and unreasonable so as to violate the constitutional mandate of Article 14. 111 And
this has already been proved above that the impugned notification does not violate article 14
of the constitution.
The Supreme Court in HarbanslalSahnia v. Indian Oil Corporation112held that the rule of
exclusion due to statutory jurisdiction, though is a rule of discretion, should be sparingly used
only when special circumstances like violation of principles of natural justice exist. In an
instance the SC had even asked the high court to refrain from entertaining debate on
constitutional validity of the code.113
Moreover, Calcutta HC observed that by the virtue of Section 424 of the Companies Act
2013, NCLT and NCLAT are required to follow the principles of natural justice. Therefore,
the parties can challenge the order before the NCLAT if the principles of natural justice have
not been followed by the NCLT.In a recent case 114 the SC held if the concerned NCLT has
erred by coram non judice i.e., by exercising a jurisdiction not vested in it in law, then only
the HC can interfere with the proceedings under Article 226 of the Constitution of India
ignoring the availability of a statutory remedy of appeal to the NCLAT. And there are
instances where the desired objective was achieved within the statutory appeal mechanism
without an unwarranted interference by the high court. 115 If the ability to decide matters
incidental to the CIRP is stripped away from the NCLT, the tribunal shall become a mere
paper tiger without the means to resolve complicated insolvency cases. In the presence of
alternate and equally efficacious remedy, notification not being violative of article 14 as
proved above in IV issue and in the light of exhaustive nature of the code the high court does
not have writ jurisdiction to hear the present matter. Even if the NCLT’s order is illegal for
want of jurisdiction, the NCLAT is the appropriate body to issue a stay of operation instead
of the high court.
110
111
ABL International Ltd v Export Credit Guarantee Corporation of India Ltd (2004) 3 SCC 553.
112
HarbanslalSahnia v Indian Oil Corporation AIR 2003 SC 2120.
113
Shivam Water Treaters Pvt Limited v Union of India 2017 SCC OnLine SC 1920.
114
M/s Embassy Property DevelopmentsPvt Ltd v State of Karnataka &Ors 2019 SCC OnLine SC 154.
115
Edelweiss Asset Reconstruction Company v Vijay Kumar V Iyer RP of Murli Industries Ltd (2019) OnLine
NCLAT 374.
20

GI 2020 - Respondent

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

GI 2020 - Respondent

Uploaded by

Copyright:

Available Formats

UNIVERSITY MOOT COURT SELECTIONS, GRAND INTRA, 2020

MEMORIAL ON BEHALF OF THE RESPONDET

[ISSUE I]: THE NOTIFICATION DATED 15.11.2019 EMPOWERS RBS TO HAVE

PROCEEDING AGAINST THE GUARANTOR.

[I.C]: THE PRINCIPLE OF COEXTENSIVE LIABILITY OF GUARANTOR AND DEBTOR UNDER

THE INDIAN CONTRACT ACT, 1872.

[III.B.1]: No effect of Section 134 of ICA.

[III.B.4]:No Defence exist by reason of Change of Management of Company.

[IV.A.1]: There exists Presumption of Constitutionality in favour of Legislation

[IV.C]: MEANINGFUL READING OF THE IBC, GUARANTOR RULES AND GUARANTEE

[IV.D]: PART III DO NOT AFFECT THE CIRP PROCESS OF HAPL.

arising out of or in relation to insolvency resolution or liquidation under the Code.”Further,

You might also like