SBI VS MAHENDRA KUMAR JAJODIA

FACTS-
The Appellant appealed the judgement of the NCLT in Kolkata, which denied
the Appellant's application to begin the Corporate Insolvency Resolution
Process ("CIRP") against the Personal Guarantor under Section 95(1) of the
Insolvency and Bankruptcy Code, 2016 ("Code"). The application was denied
by the NCLT in Kolkata since there was no CIRP or Liquidation Process
pending against the Corporate Debtor. It was noted that, under Section 60(2) of
the Code, there must be an ongoing CIRP or Liquidation Process proceeding
before the NCLT against the connected Corporate Debtor to initiate CIRP
against a Personal Guarantor.
JUDGEMENT-
According to the NCLAT the inclusion of the terms 'a' and 'such' preceding
NCLT in section 60(2) plainly indicates that the objective and intention of the
sub-section is for both processes (CIRP against CD and IRP against personal
guarantor) to be heard by the same NCLT. 
According to the tribunal Section 60(2) only applies when CIRP/liquidation
proceedings are pending before the NCLT. Even if there are no proceedings
pending before the NCLT, section 60(2) does not preclude the initiation of an
IRP under section 95 of the code.
The tribunal further pointed out that section 60(2) begins with the wording
"Without prejudice to sub-section (1)," therefore making section 60(2)'s
provisions ancillary to section 60's sub-section (1).  Section 60(1) is the
substantive provision of the Adjudicating authority and if section 60(2) does not
apply, the application for beginning IRP can be filed under section 60(1) of the
Code.
The tribunal also pointed out that according to Section 60(1) of the Code when a
case is not covered by Section 60(2) of the Code, the application to initiate
CIRP against a Personal Guarantor must be filed with the NCLT having
territorial jurisdiction over the place where the corporate person's registered
office is located.
Thus, the tribunal decided that the pending CIRP/liquidation procedures before
the NCLT are not a requirement for bringing an IRP against the personal
guarantor before the NCLT.
Therefore, the order of the NCLT in Kolkata was overturned, and the
Appellant's plea under Section 95(1) of the Code was revived before it.