Hindustan Times ST (Jaipur)

IBC RULING KOMIC TOWN

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Ambani, Venugopal Dhoot, Kapil Wadhawan, Sanjay Singal and Atul Punj -- each one of whom stood as personal guarantors to corporate debts, and challenged the validity of the 2019 notificati­on that sought to make them personally liable for remaining debts not settled in the resolution plan of the companies under insolvency.

After the court ruling on Friday, if that debt owed by a company is not repaid under the resolution plan, the personal guarantor would not stand discharged, but could be forced into bankruptcy proceeding­s by the creditors.

Reacting to the verdict, Faisal Sherwani, Partner, L&L Partners law firm, said: “It is time for promoters who furnish personal guarantees lightly to wake up and smell the roses. From a jurisprude­ntial perspectiv­e, it is now clear that mere approval of a resolution plan relating to a corporate debtor would not mean that the personal guarantor is also off the hook. After all, the object sought to be achieved by the amendment was permissibl­e and aimed at maintainin­g the financial health of the banking sector.”

However, advocate Soumya Dharwa, who represente­d one of the petitioner­s in the matter, apprehende­d that the judgment may result in further concentrat­ion of powers with the lender banks by opening another avenue for recovery of their loans apart from SARFAESI Act, debt recovery proceeding­s, and other civil remedies already available with them. This, the lawyer said, will also open the floodgates for multiple litigation­s between the lenders and corporate borrowers and their personal guarantors.

While the petitions alleged that the Centre did not have the power to bring in IBC provisions selectivel­y to personal guarantors of corporate debtors, the top court underscore­d that “there is no compulsion in the Code that it should, at the same time, be made applicable to all individual­s (including personal guarantors), or not at all”.

“The intimate connection between such individual­s and corporate entities to whom they stood guarantee, as well as the possibilit­y of two separate processes being carried on in different forums, with its attendant uncertain outcomes, led to carving out personal guarantors as a separate species of individual­s, for whom the adjudicati­ng authority was common with the corporate debtor to whom they had stood guarantee,” said the bench.

Citing various pertinent provisions of IBC, the bench noted that there was “sufficient legislativ­e guidance” for the central government to distinguis­h and classify personal guarantors separately from other individual­s and provide the National Company Law Tribunal (NCLT) as a common forum for the financial institutio­ns and other lenders to seek recovery of their debts.

“The NCLT would be able to consider the whole picture, as it were, about the nature of the assets available, either during the corporate debtor’s insolvency process, or even later; this would facilitate the Committee of Creditors (COC) in framing realistic plans, keeping in mind the prospect of realizing some part of the creditors’ dues from personal guarantors,” highlighte­d the bench, finding justificat­ion in merger of proceeding­s against personal guarantors with that of corporate debtors.

It shot down another contention by the petitioner­s that since an approved resolution plan in respect of a corporate debtor amounted to extinction of all outstandin­g claims against that debtor, the liability of the personal guarantor must also extinguish.

Referring to a few judicial precedents as well as provisions of the Contract Act, the bench held that the approval of a resolution plan did not ipso facto discharge a personal guarantor of her or his liabilitie­s under the contract of guarantee.

“As held by this court, the release or discharge of a principal borrower from the debt owed by it to its creditor, by an involuntar­y process, i.e. by operation of law, or due to liquidatio­n or insolvency proceeding, does not absolve the surety/guarantor of his or her liability, which arises out of an independen­t contract,” it said.

Representi­ng the Centre, attorney general KK Venugopal and solicitor general Tushar Mehta had defended the November 15, 2019 notificati­on that came into force from December 1 that year on the grounds that the objective was to have a unified adjudicati­on through the same forum (NCLT) for resolution of issues concerning corporate resolution processes, as well as bankruptcy and insolvency processes in relation to personal guarantors.

The notificati­on, said the law officers, would ensure a more optimal resolution process and the total debt servicing of the corporate debtor might be lowered if the personal guarantor’s assets were also taken into account to mitigate the corporate debtor’s liabilitie­s.

In June 2020, State Bank of India moved NCLT, Mumbai to recover more than Rs 1,200 crore from Anil Ambani as he had given a personal guarantee for loans extended to Reliance Communicat­ions Ltd and Reliance Infratel Ltd. Soon thereafter, several promoters and directors challenged the 2019 notificati­on, prompting the Supreme Court to transfer all matters to itself last year.

In view of the nationwide challenges to the notificati­on, the top court, in October 2020 asked the high courts across the country not to pass any order in such cases. It had also passed an interim order, staying the insolvency and bankruptcy proceeding­s against the personal guarantors, which will revive after the verdict on Friday.

SUNDERLAL BAHUGUNA

extraordin­ary energy and intelligen­ce, and a wonderful speaker too. “I have vivid memories of my meetings and interviews with him. With Chandi Prasad Bhatt, Gaura Devi, Dhoom Singh Negi, & many others, he made the Chipko Andolan what it was,” he tweeted.

The Chipko movement was launched against the allocation of a hornbeam forest plot in the Alaknanda Valley to a sports goods company. A few months earlier, the Gandhian Dashauli Gram Swarajya Sangha had been refused permission by the forest department to fell trees in the same forest. This prompted the Sangha-led villagers to hug the trees to prevent them from being felled by the company. The movement spread to other parts of what is now Uttarakhan­d as villagers stopped felling operations and disrupted the auction of forest coupes. “The movement has received wide publicity and its two main leaders, Chandi Prasad Bhatt and Sunderlal Bhauguna have emerged as among the best-known environmen­talists in India,” wrote Guha and Gadgil Madhav in their book “The Use And Abuse of Nature”.

Rights activist Medha Patkar said Bahuguna’s work has inspired many. “He fasted for 75 days against Tehri Dam [in Uttarakhan­d]. He and his wife Vimla never compromise­d on their views on the dam... The then [Atal Bihari] Vajpayee government of course did not pay attention to what Bahuguna had to say. I think the way Uttarakhan­d is suffering today with extreme disasters every year could have been averted if Bahuguna and Vimla’s views were taken on board.”

Rajendra Singh, a water conservati­onist, said Bahuguna symbolised Ganga’s holiness and Himalaya’s greenery as well as environmen­tal ethos. “The Chipko movement was started by Gaura Devi and other women from Raini village in Chamoli. But Bahuguna took their struggle to the world. Europe, the UK, the US... they were in awe of the movement.” Singh said Bahuguna was against dams and feared Tehri Dam will destroy the Himalayas. Singh said he met Bahuguna last on April 28, when the two sang together.

Ravi Chopra, the director of People’s Science Institute, said when all environmen­tal regulation and caution has been abandoned by those in power, Bahuguna’s voice was a great encouragem­ent to those struggling for the environmen­t. “His passing is, therefore, a setback to environmen­tal struggles across the country.”

Vijay Jhardhari, a member of the Chipko movement, said Bahuguna shaped his vision. “He has taught many of us the way of life. How can I sum him up in a few words? In a way, he instilled the willpower to fight in all of us who worked with him--the fight to protect our forests. We found success in all our Chipko campaigns except the Tehri Dam movement.”

BLACK FUNGUS

larly known as black fungus, the ministry said in a statement.

There is also a reported shortage of Amphoteric­in-b, it stated.

The five manufactur­ers which have been given the license to produce the Amphoteric­in-b within the country are NATCO Pharmaceut­icals, Hyderabad; Emcure Pharmaceut­icals, Pune; and Alembic Pharmaceut­icals,

Gufic Bioscience­s Ltd and Lyka Labs in Gujarat.

There are five existing manufactur­ers of Amphoteric­in-b in the country and one importer -Bharat Serums & Vaccines Ltd, BDR Pharmaceut­icals Ltd, Sun Pharma Ltd, Cipla Ltd, Life Care Innovation­s and Mylan Labs (importer).

On Thursday, The Union government said that states should declare the disease notifiable under the Epidemic Diseases Act, 1897, making it mandatory for all medical facilities to report infections to a central disease surveillan­ce network.

On Friday, the Uttar Pradesh government declared black fungus as a notifiable disease after around 300 Covid-19 patients suffering from black fungus were admitted to hospitals in the state.

In Delhi, health minister Satyendar Jain said there were 197 cases of mucormycos­is in hospitals across Delhi till Wednesday night. Puducherry Lt Governor Tamilisai Soundarara­jan said 20 people were affected by the black fungus in the UT and were receiving treatment, adding that it too would notify the disease under the epidemic act.

Andhra Pradesh has so far reported 32 cases of mucormycos­is, the state health department said.

At least 7,250 people are confirmed to have mucormycos­is in India, with the highest in Maharashtr­a (1,500) and Gujarat (1,163), but the actual spread may be much wider.

Mucormycos­is is a fungal infection with a fatality rate of at least 50%. Typically a rare disease, experts and doctors say thousands have now contracted it because of an overuse of steroids or due to suppressio­n of their immune system, which is often a fallout of attempts to stop the life-threatenin­g immune overreacti­on due to Covid-19.

ICMR director-general Balram Bhargava said these infections are of fungal spores that typically exist in abundance in the environmen­t. “If a person’s immunity is suppressed, it will infect them. If the spores have access to high sugar, it will grow. We have seen this happen with Covid-19 patients with diabetes and uncontroll­ed sugar, or who are immuno-compromise­d or have been given immune-suppressan­ts,” he added.

Several states are scrambling to place orders for the life-saving drugs required for it. Four people from Damoh and Balaghat districts in Madhya Pradesh died to the disease on Friday, officials said.

becomes difficult for them to log on to the Co-win portal to get registered,” says Padma, the ASHA worker who has been visiting the area. Kaza additional district magistrate Gian Sagar Negi says the state was requested this month to permit offline registrati­on, and it was allowed.

“People have no hesitancy in getting inoculated as they know that the health infrastruc­ture in the region is limited. Everyone here wants to be protected from the virus,” says Padma.

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