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NCLAT and Kerala High Court Disagree on Insolvency Application Date for Personal Guarantors


NCLAT and Kerala High Court Disagree on Insolvency Application Date for Personal Guarantors

The National Company Law Appellate Tribunal (NCLAT) in Delhi recently issued a ruling that diverges from a prior judgment by the Kerala High Court concerning the effective date of insolvency applications against personal guarantors under the Insolvency and Bankruptcy Code (IBC). This discrepancy primarily pertains to determining when the interim moratorium under Section 96 IBC comes into effect, which is crucial for the subsequent proceedings in the corporate insolvency resolution process (CIRP).

Background and Key Legal Issue

The legal contention revolves around the effective date of an application under Section 95 IBC. This section allows creditors to initiate the insolvency resolution process against personal guarantors of corporate debtors. A crucial aspect of this process is the interim moratorium under Section 96 IBC, which prevents any actions against the personal guarantor during the pendency of the insolvency application. The key question was whether the moratorium starts on the date the application is filed or on the date it is registered by the tribunal.

NCLAT’s Ruling

In a judgment delivered on July 2, a bench comprising NCLAT Chairperson Justice (retired) Ashok Bhushan and Technical Member Arun Baroka held that the effective date of an insolvency application is the date of filing. This decision aligns with a previous NCLAT ruling from 2022 in the case of Krishan Kumar Basia v. State Bank of India, which stated that the moratorium begins on the filing date of the application, not the registration date. The NCLAT asserted that the statutory framework and rules governing insolvency applications clearly indicate that the filing date is the crucial date.

Contrasting Kerala High Court Judgment

In 2023, the Kerala High Court delivered a conflicting opinion in the case of Jeny Thankachan v. Union of India. The High Court opined that the moratorium would commence only after the application was deemed defect-free and complete, effectively making the registration date the relevant date. This interpretation was based on ensuring that only fully compliant applications trigger the moratorium, thereby providing a clear timeline and avoiding any premature legal effects.

NCLAT's Justification

The NCLAT justified its decision by emphasizing that the statutory scheme and the National Company Law Tribunal Rules (NCLT Rules) of 2016 explicitly support the date of filing as the effective date. The Tribunal noted that the Kerala High Court may not have been aware of the NCLAT’s earlier ruling when it made its judgment. Moreover, the NCLAT stressed the importance of consistency in legal interpretations, especially when prior rulings by higher benches exist.

Case Details and Implications

The NCLAT’s recent ruling came while dismissing an appeal by a personal guarantor who had challenged an order by the National Company Law Tribunal (NCLT). The NCLT had appointed a resolution professional (RP) to examine an application against the personal guarantor of Supertech Limited, which defaulted on loans. The appeal argued that an interim moratorium triggered by another financial creditor's application should prevent further proceedings. However, the NCLAT upheld that the moratorium's start date is the filing date, thus supporting the earlier filed but later registered application.

Broader Legal and Financial Implications

This ruling by the NCLAT has significant implications for the insolvency resolution process involving personal guarantors. By affirming that the date of filing is the effective date, the NCLAT ensures a more streamlined and predictable process for creditors and debtors alike. It also highlights the importance of adhering to statutory rules and previous judgments to maintain legal consistency.

For creditors, this ruling provides clarity on when the moratorium period starts, allowing them to plan their legal strategies accordingly. For personal guarantors, it underscores the need to address insolvency applications promptly and to understand the legal implications of the filing date versus the registration date. Additionally, this judgment may influence future legal interpretations and rulings in other jurisdictions, potentially leading to a more uniform application of the IBC across India.


The NCLAT’s decision to prioritize the filing date over the registration date for the commencement of the interim moratorium under Section 96 IBC marks a critical clarification in the insolvency process for personal guarantors. By adhering to the statutory framework and previous rulings, the NCLAT ensures a consistent and predictable legal environment, benefiting all stakeholders in the insolvency resolution process. This ruling not only resolves the immediate legal contention but also sets a precedent for future cases, reinforcing the importance of the filing date in triggering the moratorium and influencing the broader legal landscape of insolvency law in India.

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