Agarwal, Ex-Director of Genegrow Commercial Private Limited, MANU/NL/0032/2020 , wherein this position has been appreciated by the Hon’ble NCLAT. It is submitted that Piramal judgment followed by Shadad Khan case has already been stayed by the Hon’ble Supreme Court of India. He argued that, in effect, Piramal is also stayed. It is further argued that Hon’ble NCLAT took a contrary view in State Bank of India vs. Athena Energy Ventures Private Limited, MANU/NL/0436/2020, [2021] 164 SCL 293 (Athena Energy) case. It is further argued that Piramal case was not founded on the earlier decision of the Supreme Court in the case of State Bank of India vs . Ramakrishnan – (2018) Vol 17 SCC 394 and another. Therefore, it can be said that Piramal was per incurium, so in Athena Energy case Hon’ble Justice A.I.S. Cheema, who was then presiding over the Bench held completely a contrary view and refused to tow the line which was being followed in Piramal’s case. It is submitted that in paragraph 24 and 25 of the M/s Krishna Alex Pvt. Ltd judgment passed in Athena Energy case, Ramakrishnan case and Lalit Kumar Jain case have been discussed and after discussing all these judgments and following the aforesaid principle laid down by the Hon’ble Supreme Court that has been followed by Hon’ble High Court, in the matter of Punjab National Bank judgment where it was held that proceedings against the Guarantor can always continue. Following the aforesaid principle laid down by Hon’ble Supreme Court, the NCLT Kolkata Bench came to the conclusion that “ Following the aforesaid principle laid down by the Hon’ble Supreme Court that has been followed by the Hon’ble High Court, we are of the considered view that the Hon’ble NCLAT’s judgment in Athena Energy is the correct position of law.The present petition against the Corporate Debtor can be admitted despite the Corporate Debtor being under CIRP”.
