Section 6 of Indian Evidence Act, 1872

Table Of Contents
  1. Section 6: Relevancy of Facts Forming Part of Same Transaction – Indian Evidence Act, 1872
  2. Important Judgments on Section 6
  3. Section 6 of IEA

Section 6: Relevancy of Facts Forming Part of Same Transaction – Indian Evidence Act, 1872

Section 6 of the Indian Evidence Act, 1872 deals with the relevancy of facts that form part of the same transaction. The provision is commonly associated with the legal principle of res gestae. It allows certain facts or statements, although not directly in issue, to be considered relevant when they are closely connected with the fact in issue.

The main purpose of Section 6 is to consider the surrounding circumstances of an incident when those circumstances are so closely connected with the main event that they form part of one continuous transaction. Such facts may occur at the same place and time or at different places and times, provided there is a sufficient connection between them.

For example, if A attacks B and people standing nearby immediately shout or react to the attack, their spontaneous statements or actions may become relevant under Section 6. The important consideration is whether the statement or fact was sufficiently spontaneous and closely connected to the incident.

Important Judgments on Section 6

In Gentela Vijayavardhan Rao v. State of Andhra Pradesh, (1996) 6 SCC 241, the Supreme Court explained that Section 6 is based on the principles of spontaneity and immediacy. The Court held that a statement must be contemporaneous with the incident or made immediately thereafter. If there is sufficient time for fabrication, it may not qualify as res gestae.

The Supreme Court has also reiterated this principle in later decisions, emphasizing that the connection between the statement or fact and the main occurrence must be close enough to make it part of the same transaction.

It is important to note that the Indian Evidence Act, 1872 was repealed from 1 July 2024 and replaced by the Bharatiya Sakshya Adhiniyam, 2023. However, Section 6 remains relevant when dealing with proceedings governed by the earlier law.

Section 6 of IEA

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.

Illustrations
(a)A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b)A is accused of waging war against the [Government of India] [Substituted by A.O. 1950, for “Queen”.]by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c)A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d)The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

Section 5 – Indian Evidence Act, 1872

Section 5 of the Indian Evidence Act, 1872 – Facts in Issue and Relevant Facts

Table Of Contents
  1. Section 5 of the Indian Evidence Act, 1872 – Facts in Issue and Relevant Facts
  2. What are Facts in Issue?
  3. What are Relevant Facts?
  4. Important Judgment
  5. Importance of Section 5
  6. Section 5 in IEA

Section 5 of the Indian Evidence Act, 1872 lays down an important rule regarding what evidence can be presented before a court. It provides that evidence may be given regarding the existence or non-existence of facts in issue and other facts which are specifically declared relevant under the Act. Evidence relating to matters that are neither facts in issue nor legally relevant is generally not admissible.

What are Facts in Issue?

Facts in issue are the facts that directly determine the rights, liabilities, or legal responsibility of the parties. For example, in a murder case, whether the accused caused the death of the victim and whether the accused had the required intention may be facts in issue.

What are Relevant Facts?

Relevant facts may not themselves be the main issue before the court, but they have a legally recognized connection with the facts in issue. Sections 6 to 16 of the Indian Evidence Act identify different categories of relevant facts, including facts forming part of the same transaction, motive, preparation, conduct, cause and effect, and facts that make the existence or non-existence of another fact probable or improbable.

Important Judgment

In State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari (2013), the Supreme Court explained the scope of Section 5 and held that evidence can be given only regarding facts in issue and facts expressly declared relevant under the Evidence Act. The Court observed that Sections 5 to 16 provide the framework for determining the admissibility of relevant facts.

The principle was also applied in deciding whether certain confessional statements could be relied upon, emphasizing that relevance and admissibility must be examined according to the statutory provisions.

Importance of Section 5

Section 5 prevents courts from being burdened with unrelated evidence. It keeps the trial focused on facts that genuinely assist in deciding the dispute. Therefore, lawyers must carefully establish the connection between the evidence presented and the facts in issue or relevant facts recognized by law.

Note: The Indian Evidence Act, 1872 was repealed from 1 July 2024 and replaced by the Bharatiya Sakshya Adhiniyam, 2023. Section 3 of the new law substantially carries forward the rule contained in Section 5 of the old Act. The old provision continues to be relevant for matters governed by the earlier law.

Section 5 in IEA

Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.Explanation. – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to [Civil Procedure].

Illustrations
(a)A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A’s trial the following facts are in issue :A’s beating B with the club;A’s causing B’s death by such beating;A’s intention to cause B’s death.
(b)A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond, on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the [Code of Civil Procedure.]

Indian Evidence Act, 1872 (Update)

All Parts, Chapters and Sections of Indian Evidence Act of 1872 are explained

indian evidence act, 1872

PART I — RELEVANCY OF FACTS

CHAPTER I — PRELIMINARY

1. Section 1: Short Title, Extent and Commencement of the Indian Evidence Act, 1872

2. Section 2: Section 2 of the Indian Evidence Act, 1872: Repealed Provision

3. Section 3: Section 3 of the Indian Evidence Act, 1872: Key Legal Definitions Explained

4. Section 4: May Presume, Shall Presume and Conclusive Proof Explained

CHAPTER II — OF THE RELEVANCY OF FACTS

5. Section 5: Evidence may be given of facts in issue and relevant facts — Indian Evidence Act, 1872

6. Section 6: Relevancy of facts forming part of same transaction — Indian Evidence Act, 1872

7. Section 7: Facts which are the occasion, cause or effect of facts in issue — Indian Evidence Act, 1872

8. Section 8: Motive, preparation and previous or subsequent conduct — Indian Evidence Act, 1872

9. Section 9: Facts necessary to explain or introduce relevant facts — Indian Evidence Act, 1872

10. Section 10: Things said or done by conspirator in reference to common design — Indian Evidence Act, 1872

11. Section 11: When facts not otherwise relevant become relevant — Indian Evidence Act, 1872

12. Section 12: In suits for damages, facts tending to enable Court to determine amount are relevant — Indian Evidence Act, 1872

13. Section 13: Facts relevant when right or custom is in question — Indian Evidence Act, 1872

14. Section 14: Facts showing existence of state of mind, or of body, or bodily feeling — Indian Evidence Act, 1872

15. Section 15: Facts bearing on question whether act was accidental or intentional — Indian Evidence Act, 1872

16. Section 16: Existence of course of business when relevant — Indian Evidence Act, 1872

ADMISSIONS

17. Section 17: Admission defined — Indian Evidence Act, 1872

18. Section 18: Admissions by Parties, Agents, Interested Persons and Persons from Whom Interest Is Derived

19. Section 19: Admissions by persons whose position must be proved as against party to suit — Indian Evidence Act, 1872

20. Section 20: Admissions by persons expressly referred to by party to suit — Indian Evidence Act, 1872

21. Section 21: Proof of admissions against persons making them, and by or on their behalf — Indian Evidence Act, 1872

22. Section 22: When oral admissions as to contents of documents are relevant — Indian Evidence Act, 1872

24. Section 23: Admissions in civil cases when relevant — Indian Evidence Act, 1872

25. Section 24: Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding — Indian Evidence Act, 1872

26. Section 25: Confession to police-officer not to be proved — Indian Evidence Act, 1872

27. Section 26: Confession by accused while in custody of Police not to be proved against him — Indian Evidence Act, 1872

28. Section 27: How much of information received from accused may be proved — Indian Evidence Act, 1872

29. Section 28: Confession made after removal of impression caused by inducement, threat or promise, relevant — Indian Evidence Act, 1872

30. Section 29: Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc — Indian Evidence Act, 1872

31. Section 30: Consideration of proved confession affecting person making it and others jointly under trial for same offence — Indian Evidence Act, 1872

32. Section 31: Admissions not conclusive proof, but may estop — Indian Evidence Act, 1872

STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

33. Section 32: Statements by Persons Who Cannot Be Called as Witnesses: When Are They Relevant?

34. Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated — Indian Evidence Act, 1872

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

35. Section 34: Entries in books of account when relevant — Indian Evidence Act, 1872

36. Section 35: Relevancy of entry in public record made in performance of duty — Indian Evidence Act, 1872

37. Section 36: Relevancy of statements in maps, charts and plans — Indian Evidence Act, 1872

38. Section 37: Relevancy of statement as to fact of public nature contained in certain Acts or notifications — Indian Evidence Act, 1872

39. Section 38: Relevancy of statements as to any law contained in law-books — Indian Evidence Act, 1872

HOW MUCH OF A STATEMENT IS TO BE PROVED

40. Section 39: What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers — Indian Evidence Act, 1872

JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT

41. Section 40: Previous judgments relevant to bar a second suit or trial — Indian Evidence Act, 1872

42. Section 41: Relevancy of certain judgments in probate, etc., jurisdiction — Indian Evidence Act, 1872

43. Section 42: Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41 — Indian Evidence Act, 1872

44. Section 43: Judgments, etc., other than those mentioned in sections 40, 41 and 42, when relevant — Indian Evidence Act, 1872

45. Section 44: Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved — Indian Evidence Act, 1872

OPINIONS OF THIRD PERSONS WHEN RELEVANT

46. Section 45: Opinions of experts — Indian Evidence Act, 1872

47. Section 45A: Opinion of Examiner of Electronic Evidence — Indian Evidence Act, 1872

48. Section 46: Facts bearing upon opinions of experts — Indian Evidence Act, 1872

49. Section 47: Opinion as to handwriting, when relevant — Indian Evidence Act, 1872

50. Section 47A: Opinion as to digital signature, when relevant — Indian Evidence Act, 1872

51. Section 48: Opinion as to existence of right or custom, when relevant — Indian Evidence Act, 1872

52. Section 49: Opinion as to usages, tenets, etc., when relevant — Indian Evidence Act, 1872

53. Section 50: Opinion on relationship, when relevant — Indian Evidence Act, 1872

54. Section 51: Grounds of opinion, when relevant — Indian Evidence Act, 1872

CHARACTER WHEN RELEVANT

55. Section 52: In civil cases character to prove conduct imputed, irrelevant — Indian Evidence Act, 1872

56. Section 53: In criminal cases previous good character relevant — Indian Evidence Act, 1872

58. Section 54: Previous bad character not relevant, except in reply — Indian Evidence Act, 1872

59. Section 55: Character as affecting damages. ON PROOF — Indian Evidence Act, 1872

PART II — ON PROOF

CHAPTER III — FACTS WHICH NEED NOT BE PROVED

60. Section 56: Fact judicially noticeable need not be proved — Indian Evidence Act, 1872

61. Section 57: Facts of which Court must take judicial notice — Indian Evidence Act, 1872

62. Section 58: Facts admitted need not be proved — Indian Evidence Act, 1872

CHAPTER IV — OF ORAL EVIDENCE

63. Section 59: Proof of facts by oral evidence — Indian Evidence Act, 1872

64. Section 60: Oral evidence must be direct — Indian Evidence Act, 1872

CHAPTER V — OF DOCUMENTARY EVIDENCE

65. Section 61: Proof of contents of documents — Indian Evidence Act, 1872

66. Section 62: Primary evidence — Indian Evidence Act, 1872

67. Section 63: Secondary evidence — Indian Evidence Act, 1872

68. Section 64: Proof of documents by primary evidence — Indian Evidence Act, 1872

69. Section 65: Cases in which secondary evidence relating to documents may be given — Indian Evidence Act, 1872

70. Section 65A: Special provisions as to evidence relating to electronic record — Indian Evidence Act, 1872

71. Section 65B: Admissibility of electronic records — Indian Evidence Act, 1872

72. Section 66: Rules as to notice to produce — Indian Evidence Act, 1872

73. Section 67: Proof of signature and handwriting of person alleged to have signed or written document produced — Indian Evidence Act, 1872

74. Section 67A: Proof as to electronic signature — Indian Evidence Act, 1872

75. Section 68: Proof of execution of document required by law to be attested — Indian Evidence Act, 1872

76. Section 69: Proof where no attesting witness found — Indian Evidence Act, 1872

77. Section 70: Admission of execution by party to attested document — Indian Evidence Act, 1872

78. Section 71: Proof when attesting witness denies the execution — Indian Evidence Act, 1872

79. Section 72: Proof of document not required by law to be attested — Indian Evidence Act, 1872

80. Section 73: Comparison of signature, writing or seal with others admitted or proved — Indian Evidence Act, 1872

81. Section 73A: Proof as to verification of digital signature — Indian Evidence Act, 1872

82. Section 74: Public documents — Indian Evidence Act, 1872

83. Section 75: Private documents — Indian Evidence Act, 1872

84. Section 76: Certified copies of public documents — Indian Evidence Act, 1872

85. Section 77: Proof of documents by production of certified copies — Indian Evidence Act, 1872

86. Section 78: Proof of other official documents — Indian Evidence Act, 1872

87. Section 79: Presumption as to genuineness of certified copies — Indian Evidence Act, 1872

88. Section 80: Presumption as to documents produced as record of evidence — Indian Evidence Act, 1872

89. Section 81: Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents — Indian Evidence Act, 1872

90. Section 81A: Presumption as to Gazettes in electronic forms — Indian Evidence Act, 1872

91. Section 82: Presumption as to document admissible in England without proof of seal or signature — Indian Evidence Act, 1872

92. Section 83: Presumption as to maps or plans made by authority of Government — Indian Evidence Act, 1872

93. Section 84: Presumption as to collections of laws and reports of decisions — Indian Evidence Act, 1872

94. Section 85: Presumptions as to powers-of-attorney — Indian Evidence Act, 1872

95. Section 85A: Presumption as to electronic agreements — Indian Evidence Act, 1872

96. Section 85B: Presumption as to electronic records and electronic signatures — Indian Evidence Act, 1872

97. Section 85C: Presumption as to Electronic Signature Certificates — Indian Evidence Act, 1872

98. Section 86: Presumption as to certified copies of foreign judicial records — Indian Evidence Act, 1872

99. Section 87: Presumption as to books, maps and charts — Indian Evidence Act, 1872

100. Section 88: Presumption as to telegraphic messages — Indian Evidence Act, 1872

101. Section 88A: Presumption as to electronic messages — Indian Evidence Act, 1872

102. Section 89: Presumption as to due execution, etc., of documents not produced — Indian Evidence Act, 1872

103. Section 90: Presumption as to documents thirty years old — Indian Evidence Act, 1872

104. Section 90A: Presumption as to electronic records five years old — Indian Evidence Act, 1872

CHAPTER VI — OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

105. Section 91: Evidence of terms of contracts, grants and other dispositions of property reduced to form of document — Indian Evidence Act, 1872

106. Section 92: Exclusion of evidence of oral agreement — Indian Evidence Act, 1872

107. Section 93: Exclusion of evidence to explain or amend ambiguous document — Indian Evidence Act, 1872

108. Section 94: Exclusion of evidence against application of document to existing facts — Indian Evidence Act, 1872

109. Section 95: Evidence as to document unmeaning in reference to existing facts — Indian Evidence Act, 1872

110. Section 96: Evidence as to application of language which can apply to one only of several persons — Indian Evidence Act, 1872

111. Section 97: Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies — Indian Evidence Act, 1872

112. Section 98: Evidence as to meaning of illegible characters, etc — Indian Evidence Act, 1872

113. Section 99: Who may give evidence of agreement varying terms of document — Indian Evidence Act, 1872

114. Section 100: Saving of provisions of Indian Succession Act relating to wills. PRODUCTION AND EFFECT OF EVIDENCE — Indian Evidence Act, 1872

PART III — PRODUCTION AND EFFECT OF EVIDENCE

CHAPTER VII — OF THE BURDEN OF PROOF

115. Section 101: Burden of proof — Indian Evidence Act, 1872

116. Section 102: On whom burden of proof lies — Indian Evidence Act, 1872

117. Section 103: Burden of proof as to particular fact — Indian Evidence Act, 1872

118. Section 104: Burden of proving fact to be proved to make evidence admissible — Indian Evidence Act, 1872

119. Section 105: Burden of proving that case of accused comes within exceptions — Indian Evidence Act, 1872

120. Section 106: Burden of proving fact especially within knowledge — Indian Evidence Act, 1872

121. Section 107: Burden of proving death of person known to have been alive within thirty years — Indian Evidence Act, 1872

122. Section 108: Burden of proving that person is alive who has not been heard of for seven years — Indian Evidence Act, 1872

123. Section 109: Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent — Indian Evidence Act, 1872

124. Section 110: Burden of proof as to ownership — Indian Evidence Act, 1872

125. Section 111: Proof of good faith in transactions where one party is in relation of active confidence — Indian Evidence Act, 1872

126. Section 111A: Presumption as to certain offences — Indian Evidence Act, 1872

127. Section 112: Birth during marriage, conclusive proof of legitimacy — Indian Evidence Act, 1872

128. Section 113: Proof of cession of territory — Indian Evidence Act, 1872

129. Section 113A: Presumption as to abetment of suicide by a married woman — Indian Evidence Act, 1872

130. Section 113B: Presumption as to dowry death — Indian Evidence Act, 1872

131. Section 114: Court may presume existence of certain facts — Indian Evidence Act, 1872

132. Section 114A: Presumption as to absence of consent in certain prosecution for rape — Indian Evidence Act, 1872

CHAPTER VIII — ESTOPPEL

133. Section 115: Estoppel — Indian Evidence Act, 1872

134. Section 116: Estoppel of tenants and of licensee of person in possession — Indian Evidence Act, 1872

135. Section 117: Estoppel of acceptor of bill of exchange, bailee or licensee — Indian Evidence Act, 1872

CHAPTER IX — OF WITNESSES

136. Section 118: Who may testify — Indian Evidence Act, 1872

137. Section 119: Witness unable to communicate verbally — Indian Evidence Act, 1872

138. Section 120: Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial — Indian Evidence Act, 1872

139. Section 121: Judges and Magistrates — Indian Evidence Act, 1872

140. Section 122: Communications during marriage — Indian Evidence Act, 1872

141. Section 123: Evidence as to affairs of State — Indian Evidence Act, 1872

142. Section 124: Official communications — Indian Evidence Act, 1872

143. Section 125: Information as to commission of offences — Indian Evidence Act, 1872

144. Section 126: Professional communications — Indian Evidence Act, 1872

145. Section 127: Section 126 to apply to interpreters, etc — Indian Evidence Act, 1872

146. Section 128: Privilege not waived by volunteering evidence — Indian Evidence Act, 1872

147. Section 129: Confidential communications with legal advisers — Indian Evidence Act, 1872

148. Section 130: Production of title-deeds of witness not a party — Indian Evidence Act, 1872

149. Section 131: Production of documents or electronic records which another person, having possession, could refuse to produce — Indian Evidence Act, 1872

150. Section 132: Witness not excused from answering on ground that answer will criminate — Indian Evidence Act, 1872

151. Section 133: Accomplice — Indian Evidence Act, 1872

152. Section 134: Number of witnesses — Indian Evidence Act, 1872

CHAPTER X — OF THE EXAMINATION OF WITNESSES

153. Section 135: Order of production and examination of witnesses — Indian Evidence Act, 1872

154. Section 136: Judge to decide as to admissibility of evidence — Indian Evidence Act, 1872

155. Section 137: Examination-in-Chief, Cross-Examination and Re-Examination Explained

156. Section 138: Order of examinations. Direction of re-examination — Indian Evidence Act, 1872

157. Section 139: Cross-examination of person called to produce a document — Indian Evidence Act, 1872

158. Section 140: Witnesses to character — Indian Evidence Act, 1872

159. Section 141: Leading questions — Indian Evidence Act, 1872

160. Section 142: When they must not be asked — Indian Evidence Act, 1872

161. Section 143: When they may be asked — Indian Evidence Act, 1872

162. Section 144: Evidence as to matters in writing — Indian Evidence Act, 1872

163. Section 145: Cross-examination as to previous statements in writing — Indian Evidence Act, 1872

164. Section 146: Questions lawful in cross-examination — Indian Evidence Act, 1872

165. Section 147: When witness to be compelled to answer — Indian Evidence Act, 1872

166. Section 148: Court to decide when question shall be asked and when witness compelled to answer — Indian Evidence Act, 1872

167. Section 149: Question not to be asked without reasonable grounds — Indian Evidence Act, 1872

168. Section 150: Procedure of Court in case of question being asked without reasonable grounds — Indian Evidence Act, 1872

169. Section 151: Indecent and scandalous questions — Indian Evidence Act, 1872

170. Section 152: Questions intended to insult or annoy — Indian Evidence Act, 1872

171. Section 153: Exclusion of evidence to contradict answers to questions testing veracity — Indian Evidence Act, 1872

172. Section 154: Question by party to his own witness — Indian Evidence Act, 1872

173. Section 155: Impeaching credit of witness — Indian Evidence Act, 1872

174. Section 156: Questions tending to corroborate evidence of relevant fact, admissible — Indian Evidence Act, 1872

175. Section 157: Former statements of witness may be proved to corroborate later testimony as to same fact — Indian Evidence Act, 1872

176. Section 158: What matters may be proved in connection with proved statement relevant under Sections 32 or 33 — Indian Evidence Act, 1872

177. Section 159: Refreshing a Witness’s Memory and Using Documents to Refresh Memory

178. Section 160: Testimony to facts stated in document mentioned in Section 159 — Indian Evidence Act, 1872

179. Section 161: Right of adverse party as to writing used to refresh memory — Indian Evidence Act, 1872

180. Section 162: Production and Translation of Documents

181. Section 163: Giving, as evidence, of document called for and produced on notice — Indian Evidence Act, 1872

182. Section 164: Using, as evidence, of document production of which was refused on notice — Indian Evidence Act, 1872

183. Section 165: Judge’s power to put questions or order production — Indian Evidence Act, 1872

184. Section 166: Power of jury or assessors to put questions — Indian Evidence Act, 1872

CHAPTER XI — OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE

185. Section 167: Improper Admission or Rejection of Evidence: When Is a New Trial Allowed?

TRANSFER OF ASSETS Under Section 28A-Insolvency and Bankruptcy Code (Amendment) Act, 2026

The Insolvency and Bankruptcy Code (Amendment) Act, 2026 has brought in major amendments to the Principal Act and one such significant changes is insertion of Section 28A, which came into effect on 26.05.2026. Section 28A empowers a creditor to transfer the assets of guarantor (personal/corporate) into the CIRP of the corporate debtor. The rationale behind the amendment as stated by the Select Committee on the IBC(Amendment) Bill, 2025 is to address the challenge of asset fragmentation, for instance, where the corporate debtor owns the factory but the guarantor owns the land, such cases make resolution difficult as the land is not part of the assets available for resolution. Therefore, this provision would consolidate the assets, thereby, enhancing value maximization. Notably, this provision is applicable only during CIRP of the corporate debtor and not during the liquidation proceedings. While the provision promises the enhanced recoveries and broader asset pool for resolution applicants, it also raises important questions regarding the guarantor’s rights. This article examines the implications and challenges associated with Section 28A of the Code.

Section 28 A Of IBC 2026 1024x683

ANALYSIS OF SECTION 28A:

Section 28A of the Code envisages that a creditor may transfer an asset of a guarantor of the corporate debtor as part of the CIRP and to do the same the creditor must (i) have a security interest over an asset of the guarantor (ii) have taken possession of the same by enforcing the security interest under any law for time being in force which empowers the creditor to transfer the asset. Further, the committee of creditor (CoC) of the corporate debtor shall approve the transfer of asset. If the guarantor is undergoing insolvency resolution, liquidation or bankruptcy under the Code, additional approval will be required from CoC or creditors of the guarantor, as the case may be. Once, the asset is transferred into the CIRP of corporate debtor, the successful resolution applicant acquires all rights in the asset as if the transfer had been made by the owner by the asset, i.e., the guarantor.

For example, under Section 13 of the SARFAESI Act, a secured creditor may enforce the security interest when a borrower makes any default, subject to compliance with the procedure prescribed therein. Further, section 13 (4), empowers the creditor to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset. Consequently, where a creditor has taken possession of an asset belonging to a guarantor of the corporate debtor in accordance with SARFAESI Act or any other applicable law, such asset may subject to the requirements of Section 28A be transferred as part of the CIRP of the corporate debtor.

Prior to introduction of Section 28A, although a creditor could pursue remedies against both the corporate debtor and its guarantor, the enforcement and realization of assets of guarantor typically occurred through separate recovery proceedings including CIRP against the guarantor. As a result, assets of the guarantor remained outside the resolution leading to fragmented recoveries and decrease in resolution value but now section 28A operates as a platform to sell the said asset as a part of corporate debtor’s CIRP rather than independently, thereby, maximizing the resolution value.

IMPACT ON GUARANTOR’S RIGHTS

Though at the outset the provision seems to eliminate parallel proceedings and maximization of value, it also poses challenges to the Guarantor’s Rights. A guarantor’s liability is usually distinct from that of a corporate debtor and Section 28A operates contrary to this well settled principle by including guarantor’s assets into the insolvency estate of the corporate debtor.

Section 28A starts with the non-obstante clause Notwithstanding anything contained in this Code or any other law for the time being in force, which means that it has an overriding effect on the existing laws. The Transfer of Property Act (TPA) matters here because almost every guarantor’s security over land is a mortgage, and the guarantor who mortgages is the mortgagor. The TPA gives every mortgagor, the right of redemption. This gives the mortgagor, a right to pay off the debt and take the property back, until the sale is complete. When we look at the wording of Section 28A, it does not talk about any rights of the guarantors as to when their right to redeem would end.

Further 28A (2) provides for a deeming clause, which states that the transfer of an asset referred to in sub-section (1) under a resolution plan shall vest in the transferee all rights in, or in relation to the asset, as if the transfer had been made by the owner of such asset. Usually, a mortgagor is the owner of the mortgaged property and the mortgage gives the creditor a security interest and not ownership. Yet, this section lets a creditor transfer an asset with effect as if transfer was made by the owner himself, without guarantor’s participation.

Section 28 A also hallows out one more right of a guarantor, the right of subrogation. Under Section 140 of the Indian Contract Act, a guarantor who pays the creditor steps into the creditor’s shoes against the principal borrower. Section 28A is silent on the aspect of protection of this right.

On another note, Section 28A does give something to the guarantor. The surplus, if the asset is transferred for an amount more than the debt, must be returned to the guarantor. Further, where the guarantor itself is in insolvency, the amount received pursuant to the transfer of asset flows into the estate of guarantor.  However, the surplus protection only matters in rare cases where a distressed asset sells above the debt and distressed assets usually sell below. Section 28A offers a return of surplus that will likely never arise, while taking away the major rights of the guarantors.

SELECT COMMITTEE REPORT AND AMENDED REGULATIONS:

The Parliamentary Select Committee, in its report on Amendment Bill dated December 17 2025, considered the concerns raised by various stakeholders/experts regarding Section 28A. The concerns principally related to the guarantor’s right of redemption and the interplay between the provisions of SARFAESI Act, TPA and IBC.

However, instead of substantially addressing these concerns, the Committee observed that the interests of guarantors were adequately protected by the requirement to return any surplus realized from the transfer of secured asset. The Committee further noted that that the IBBI would frame regulations governing the procedural aspects of such transfers, thereby ensuring a balance between creditor flexibility and regulated asset transfers.

Pursuant to this, the IBBI, on 01.06.2026, through amendments inserted Regulations 28A and 28N into the CIRP regulations and Regulation 8A into the Liquidation Regulations. A closer examination of these regulations reveals that they are largely procedural in nature and merely acts as an extension to the framework contemplated under Section 28A of the Act. The regulations neither addresses the concerns relating to the guarantor’s right under various other Acts. Rather than introducing substantive safeguards or preserving existing rights of grantors, the regulations primarily facilitate the implementation of Section 28A, leaving the core concerns raised substantially unresolved.

CONCLUSION:

The insertion of Section 28A marks an important development in India’s insolvency framework. By including the assets of guarantor within the resolution process of corporate debtor, Section 28A seeks to maximize value, improve recoveries, and enhance the prospects of successful restructuring.

At the same time, the provision raises significant questions concerning guarantor rights, protections and procedural fairness. Its implementation will require careful balancing of competing interests and thoughtful judicial interpretation.