# Jeny Thankachan vs. Union of India & Ors.

> HC judgment dated 2023-11-17. Citation: TCN-2023-HC-00016. The petitioner, a sleeping partner in a Limited Liability Partnership (LLP), filed a writ petition…

- **Court:** HC
- **Order date:** 17 Nov 2023
- **Citation:** TCN-2023-HC-00016
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/high-courts-new-delhi/jeny-thankachan-vs-union-of-india-ors-a021f648

## Summary

### Background

The petitioner, a sleeping partner in a Limited Liability Partnership (LLP), filed a writ petition seeking a declaration that the provisions of the Insolvency and Bankruptcy Code (IBC), 2016, should override the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), 2002. The petitioner argued that since insolvency resolution and bankruptcy for individuals and partnership firms came into force on 15.11.2019, the IBC should take precedence. The petitioner initiated insolvency resolution process under Section 94 of the IBC before the National Company Law Tribunal (NCLT), Kochi Bench, after the 5th respondent-Bank resorted to coercive proceedings under the SARFAESI Act. The petitioner claimed that the bank initiated

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## Facts

Jeny Thankachan, the petitioner, is a sleeping partner in the 3rd respondent-Limited Liability Partnership (LLP). The LLP approached the 4th respondent-Bank and availed a loan of ₹65,10,000. The LLP defaulted in repayment, and the account was declared Non-Performing Asset (NPA) on 31.10.2022. The Bank initiated Section 13 proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The petitioner, being a guarantor, was issued a Section 13(2) notice. The Bank approached the Chief Judicial Magistrate under Section 14(1) of the SARFAESI Act, and the Magistrate passed an order dated 30.05.2023 appointing an Advocate Commissioner to assist the Bank in taking possession of the property. The

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## Issues and analysis

### Issue 1: Whether the provisions of the Insolvency and Bankruptcy Code (IBC), 2016, shall have overriding …

**Ratio:** Section 238 of the IBC 2016 provides that the IBC shall have overriding effect over other

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**Reasoning:** The court reasoned that while Section 238 of the IBC provides for its overriding effect,

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**Interpretation:** The court interpreted Section 238 of the IBC to mean that it does not

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**Application:** In this case, the court found no repugnancy between the IBC and the SARFAESI

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## Parties

- **Judges:** N. NAGA…
- **Appellants:** JENY THAN…
- **Respondents:** HAWKING TECHNOLOGI…; Union of…
- **Other parties:** 7th Edition…; Personal Gu…; +7 more

## Timeline

- **2017-08-09 — Certificate of…**: Certificate of Incorporation…
- **2017-08-10 — LLP Agre…**: LLP Agreement was…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 94 — Application by debtor to initiate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-94)

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