Page No.# 1/6 GAHC010247552025 2025:GAU-AS:17354-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6364/2025 SAURABH PODDAR SON OF SRI MANOJ PODDAR, RESIDING AT 21, BELVEDERE ROAD, KOLKATA- 700027. VERSUS 1.UNION OF INDIA AND ANR REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF CORPORATE AFFAIRS, 5TH FLOOR, A-WING, SHASTRI BHAWAN, NEW DELHI-110001, NEW DELHI. 2:INDIAN BANK (ERSTWHILE ALLAHABAD BANK) A BANKING COMPANY DULY CONSTITUTED UNDER THE BANKING COMPANIES ACQUISITION AND TRANSFER OF UNDERTAKING ACT 1970 HAVING ITS HEAD OFFICE AT PB NO. 5555 254-260 AVVAI SHANMUGAM SALAI ROYAPETTAH CHENNAI-600014 AND A BRANCH OFFICE AT H.S. ROAD DIBRUGARH ASSAM-786001 For the Petitioner(s) : Mr. S.C. Keyal, Advocate. For the Respondent(s) : Mr. M. Sharma, Advocate for respondent No.2. – B E F O R E – HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY 15.12.2025 (Ashutosh Kumar, CJ) We have heard Mr. S.C. Keyal, the learned Advocate for the petitioner and Mr. M. Sharma, learned Advocate for respondent Page No.# 2/6 No.2/Bank. 2. This writ petition has been filed by a former Director of M/s. Bajajee Exports Limited (borrower)/principal debtor), a company based in Dibrugarh, Assam. He is a resident of Kolkata, who seeks to challenge the order dated 06.10.2025 passed by the National Company Law Tribunal (in short, NCLT), Guwahati in CP(IB) No.1/GB/2025 under Section 95 of the Insolvency and Bankruptcy Code, 2016 (in short, IBC). 3. By the order impugned, Resolution Professional has been appointed at the request of respondent/Indian Bank (Financial Creditor/ respondent No.2), without first adjudicating the petitioner’s Interlocutory Application, which raised preliminary objections on the maintainability of Section 95 proceedings and the territorial jurisdiction of the NCLT, Guwahati. 4. It appears that credit facilities were availed by the borrower from the erstwhile Allahabad Bank, which later merged into Indian Bank in the year 2020. The petitioner that time was a Director and had provided personal guarantee for earlier loans. However, as claimed by the petitioner, for subsequent sanctions by the Bank in the years 2020 and 2021, which was after major restructuring of the loan facility, the petitioner explicitly refused to execute a fresh personal guarantee. 5. The contention of the petitioner is that despite this, the Bank disbursed the loans to the principal borrower; later classified the account as Non-Performing Assets and sought to recover approximately Rs.4.7 crores through SARFAESI proceedings against the borrower’s Secured Interests. Page No.# 3/6 6. A separate recovery proceeding under the Recovery of Debts and Bankruptcy Act, 1993, before the Debts Recovery Tribunal, Guwahati was initiated, arraigning the petitioner as a guarantor, which is pending consideration before the Court. 7. he Indian Bank has also initiated proceedings against the petitioner under Section 95 of the IBC before the NCLT, Guwahati in his capacity as a personal guarantor for the borrower’s debts. 8. Critically no Corporate Insolvency Resolution (CIRP) Process under Section 7 of the IBC has been initiated against the Principal Borrower. 9. The contention of Mr. S.C. Keyal, learned Advocate for the petitioner is that this proceeding under Section 95 of the IBC against the petitioner is, in fact, premature. 10. There is no substance in this argument as the whole architecture of IBC permits parallel proceedings against the personal Guarantor, independently of the Principal Borrower. However, the liability of the petitioner would be created only if it is found the he has offered his personal guarantee for the loan, which the petitioner has questioned. This was his precise contention in the Interlocutory Application, which the petitioner had filed before the NCLT, Guwahati. 11. It appears that such Interlocutory Application has been deferred for a future date but in the meantime, a Resolution Professional has been appointed. 12. Mr. Keyal submits that it amounts to putting the cart before the Page No.# 4/6 horse, which is not permissible. The preliminary objection/the jurisdictional question ought to have been decided first before going forward to appoint a Resolution Professional which will trigger many actions, leaving the petitioner in lurch specially the moratorium and other connected issues. 13. The prayer of the learned Advocate for the petitioner is that the order appointing the Resolution Professional of the NCLT, Guwahati be quashed, and the NCLT, Guwahati be directed to decide the jurisdictional question first. 14. Opposing such a prayer, Mr. S. Sharma, learned Advocate for respondent No.2 has drawn the attention of this Court to the judgment of the Supreme Court in Dilip B. Jiwrajka -Vs- Union of India :: (2024) 5 SCC 435. 15. The conclusions formulated in the afore-noted judgment explicitly declare that at the stage of Section 95 of IBC, there is no judicial adjudication; rather the appointment of Resolution Professional only serves the purpose for collating all facts relevant to examination of the application for the commencement of insolvency resolution process. The conclusion of the Supreme Court in the afore-noted case of Dilip B. Jiwrajka (supra) is being extracted here for ready reference: “v. Conclusion 86. We summarise the conclusion of this judgment below: 86.1. No judicial adjudication is involved at the stages envisaged in Section 95 to Section 99 IBC; 86.2. The resolution professional appointed under Section 97 serves a facilitative role of collating all the facts relevant to the examination of the Page No.# 5/6 application for the commencement of the insolvency resolution process which has been preferred under Section 94 or Section 95. The report to be submitted to the adjudicatory authority is recommendatory in nature on whether to accept or reject the applications; 86.3. The submission that a hearing should be conducted by the adjudicatory authority for the purpose of determining “jurisdictional facts” at the stage when it appoints a resolution professional under Section 97(5) IBC is rejected. No such adjudicatory function is contemplated at that stage. To read in such a requirement at that stage would be to rewrite the statute which is impermissible in the exercise of judicial review; 86.4. The resolution professional may exercise the powers vested under Section 99(4) IBC for the purpose of examining the application for insolvency resolution and to seek information on matters relevant to the application in order to facilitate the submission of the report recommending the acceptance or rejection of the application. 86.5. There is no violation of natural justice under Section 95 to Section 100 IBC as the debtor is not deprived of an opportunity to participate in the process of the examination of the application by the resolution professional; 86.6. No judicial determination takes place until the adjudicating authority decides under Section 100 whether to accept or reject the application. The report of the resolution professional is only recommendatory in nature and hence does not bind the adjudicatory authority when it exercises its jurisdictional under Section 100. 86.7. The adjudicatory authority must observe the principles of natural justice when it exercises jurisdiction under Section 100 for the purpose of determining whether to accept or reject the application; 86.8. The purpose of the interim moratorium under Section 96 is to protect the debtor from further legal proceedings; and 86.9. The provisions of Section 95 to Section 100 IBC are not unconstitutional as they do not violate Article 14 and Article 21 of the Constitution.” 16. At this stage Mr. Keyal, learned Advocate for the petitioner, realizing that the hearing on the maintainability/jurisdictional objection has been deferred to a later date, seeks permission to withdraw this writ petition in order to approach this Court again, should such necessity Page No.# 6/6 arise. 17. Allowing such a prayer, we permit Mr. Keyal to withdraw this petition, with the liberty as aforesaid and with a request to the NCLT to decide the jurisdictional issue at the earliest. 18. The writ petition stands dismissed as withdrawn, with liberty and observation as aforesaid. JUDGE CHIEF JUSTICE Comparing Assistant