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Supreme Court of India
Insolvency And Bankruptcy Board … vs Lalit Kumar Jain on 29 October, 2020Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta, Ajay Rastogi

Non-Reportable

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

Transfer Petition (Civil) No (s).1034 of 2020

INSOLVENCY AND BANKRUPTCY BOARD OF INDIA
…. Petitioner(s)
Versus

LALIT KUMAR JAIN & ORS.
…. Respondent (s)

WITH

Transfer Petition(s)(Civil) No(s). 1043/2020
Transfer Petition(s)(Civil) No(s). 1035/2020
Transfer Petition(s)(Civil) No(s). 1038/2020
Transfer Petition(s)(Civil) No(s). 1044/2020
Transfer Petition(s)(Civil) No(s). 1027/2020
Transfer Petition(s)(Civil) No(s). 1029/2020
Transfer Petition(s)(Civil) No(s). 1036/2020
Transfer Petition(s)(Civil) No(s). 1030/2020
Transfer Petition(s)(Civil) No(s). 1142/2020
Transfer Petition(s)(Civil) No(s). 1147/2020
Transfer Petition(s)(Civil) No(s).1146/2020
Transfer Petition(s)(Civil) No(s).1148/2020

O R D E R
Signature Not Verified

Digitally signed by
Rachna
Date: 2020.10.29
18:25:11 IST
Reason:
1. The Insolvency and Bankruptcy Board of India has filed

the above Transfer Petitions under Article 139 (A) read with

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Article 142 of the Constitution of India seeking transfer of the

Writ Petitions filed before High Courts to this Court.

2. By a Notification dated 15.11.2019, the Ministry of

Corporate Affairs, Government of India in exercise of its

power conferred under Section 1(3) of the Insolvency and

Bankruptcy Code, 2016 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: –

i. Clause (e) of Section 2;
ii. Section 78 (except with regard to fresh start process) and
Sections 79;
iii. Sections 94 to 187 (both inclusive);
iv. Clause (g) to Clause (i) of sub-section (2) of Section 239
v. Clause (m) to Clause (zc) of sub-section (2) of Section 239;
vi. Clause (zn) to Clause (zs) of sub-section (2) of Section 240;
and
vii. Section 249.

3. Writ Petitions were filed in the High Court of Delhi and

other High Courts challenging the Notification dated

15.11.2019 and the Insolvency and Bankruptcy (Application

to Adjudicating Authority for Insolvency Resolution Process of

Personal Guarantors to Corporate Debtors) Rules, 2019. The

Writ Petitioners also sought a declaration that Section 95, 96,

99, 100, 101 of the Insolvency and Bankruptcy Code, 2016

are unconstitutional in so far as they apply to personal

guarantors of corporate debtors. The Writ Petitions filed in
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the Delhi High Court are scheduled to be heard finally on

10.11.2020. The Petitioner contended that several Writ

Petitions have been filed in the other High Courts. The

Petitioner requests for the transfer of the Writ Petitions from

all the High Courts to this Court to avoid the confusion

caused by possible divergence of opinions expressed by the

High Courts.

4. Ms. Madhavi Divan, learned Additional Solicitor General

appearing for the Petitioner submitted that in view of the

importance of the matter, it is imminent that all the Writ

Petitions are transferred to this Court for an early resolution

of the dispute. The learned Additional Solicitor General

submitted that different opinions by the High Courts before

which the Writ Petitions are pending would lead to confusion.

The learned Solicitor General supported the submissions of

the learned Additional Solicitor General and urged that the

dispute pertaining to the validity of the Notification dated

15.11.2019 needs to be decided expeditiously. According to

learned Solicitor General, the best course would be to

transfer the cases to this Court where the dispute can be

finally resolved.

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5. The learned counsel appearing for the Respondents-

Writ Petitioners in the High Courts objected to the transfer of

the Writ Petitions on the following grounds: –

a) That the Writ Petitions in the Delhi High Court are

ready for hearing as they are listed on 10.11.2020 for

final disposal. Therefore, the Delhi High Court should

be permitted to complete the hearing.
b) If the High Courts decide the matter, this Court will

have the benefit of their opinion on the subject

matter of the dispute.
c) That the Insolvency and Bankruptcy Board of India

cannot maintain these Transfer Petitions. Transfer

Petitions could have been filed by the Union of India.
d) That transfer of the Writ Petitions from various High

Courts to this Court would not hasten the process and

lead to early disposal. On the other hand, the Writ

Petitions will remain pending in this Court for a long

period of time.

6. After hearing the submissions made by the parties, we

are of the considered opinion that the Writ Petitions that are

pending in the High Courts pertaining to the challenge to the

Notification dated 15.11.2019 and related issues have to be

transferred to this Court. Transfer of the Writ Petitions to this

Court would avoid conflicting decisions by the High Courts

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which are in seisin of the Writ Petitions. 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.

7. We direct the transfer of the Writ Petitions giving rise to

the above Transfer Petitions which are pending before the

High Courts to this Court. The Registries of the High Courts

are directed to transmit the records of the Writ Petitions

forthwith.

8. As we have transferred the Writ Petitions filed

challenging the Notification dated 15.11.2019 and related

issues to this Court, we direct 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

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orders passed by the High Courts, if any, shall continue till

further orders.

9. The Transfer Petitions are allowed, accordingly.

……………………………..J.
[L. NAGESWARA RAO]

…………………………….J.
[HEMANT GUPTA]

…………………………….J.
[AJAY RASTOGI]
New Delhi,
October 29, 2020.

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