TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 1106
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....7.7.2018. Subsequently, the complainant sent a statutory notice on 06.8.2018, upon, the accused (supra), demanding the afore sum from them. The factum of issuance, and, receipt of afore statutory notice, by the accused concerned, is not disputed before this Court. Since the demand as made, upon the accused concerned, through the afore statutory notice remained unreddressed, thereupon the complainant instituted the complaint (supra), on 07.9.2018. As afore stated, after the learned Judicial Magistrate concerned, recorded the preliminary evidence, he issued summons upon each of the accused. The summons issued upon the petitioner herein, become challenged by him. 3. The learned counsel appearing for the petitioner, has with much vigour, contended before this Court, that since the occurrence of sendings, and, receipt of the statutory notice, happened on 06.8.2018, and, when prior thereto, as apparent on a reading of Annexure P-2, the National Company Law Tribunal, New Delhi Bench, in the petition drawn by the complainant, against the respondent-accused M/s Xalta Food and Beverages Pvt. Ltd., hence claiming therein, the relief of imposition of moratorium, in terms of Section 14 of the ....
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....respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) the provisions of sub-section (1) shall not apply to- (a) such transaction as may be notified by the Central Government in consultation with any financial regulator; (b) a surety in a contract of guarantee to a corporate debtor. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process." 4. Moreover, and, reiteratedly he argues that when the demand, as made through the statutory notice upon the juristic entity/accused, named in the complaint(supra), could not be hence redeemed by it, during the moratorium period, as the statutory disablements entailed upon the assets, and, accounts of the corporate entity concerned, rather f....
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.... regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice ." 5. Before appreciating the aforemade arguments, by the learned counsel for the petitioner, it is imperative to extract hereinafter, the relevant portion of the order as made on 25.7.2018, by the National Company Law Tribunal, New Delhi Bench, relevant portion whereof stands extracted hereafter:- "6. In the absence of any dispute, or rather in the face of a clear and categorical admission of the Corporate Debtor, the prayer of the operational Creditor has to be admitted. Accordingly, the petition is admitted. A moratorium in terms of Section 14 of Code comes into effect forthwith staying : (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of it....
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....2 thereof, as becomes extracted hereinafter, taken a view that the moratorium provisions contained in Section 14 of the IBC Code, prohibit the continuation of proceedings drawn even under Section 138/141 of the Negotiable Instruments Act, against the corporate debtor, rather during the subjudice corporate insolvency resolution process. "Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instrume....
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....17, and, in the calender year 2018, calender years whereof, are the ones mentioned in paragraph 2 of the order (supra), made by NCLT, New Delhi. Therefore, prima facie hence there is inter se concurrence inter se the cause of action embodied the instant complaint, vis-a-vis the details borne in paragraph 2 of the order (supra), and the above inference would become withered, only upon prima facie material existing on record, and, its making a display, that the details made in paragraph above of the order (supra), appertain(s) not to the cause of action, carried in the instant complaint. Since the above rebutting material to erode the afore drawn prima facie inference, is not on record. Therefore, the afore made argument is rejected. 8. Now considering the further argument addressed, before this Court by the learned counsel for the petitioner, that the underlined hereinabove condition precedent, for therethroughs valid cognizance, and, also valid assumption of jurisdiction, being taken by the learned trial Magistrate, upon, the complaint concerned, does enjoin, qua its along with all the clauses carried in the proviso, rather being conjunctively satisfied. Therefore, in the wake of ....
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....claims himself to be the suspended Director of the corporate entity, named as M/s Xalta Food and Beverates Pvt. Ltd. The learned counsel for the petitioner submits, that the clout of the moratorium, is omnibus, and, it also indemnifies, and, saves the liability, if any, of the petitioner herein. However, the afore made argument, cannot be accepted by this Court, as the Hon'ble Apex Court in judgment (supra), has in paragraphs 120 and 121 thereof, paras whereof, stand extracted hereinafter, made a candid expostulation of law, that proceedings drawn under Section 138 of the Negotiable Instruments Act, though are covered by Section 14 of the IBC Code, but the afore drawn proceedings cannot rather continue only against the corporate debtor accused, but can continue against the erstwhile director/person incharge, and, responsible for the conduct of the business of the corporate debtor. Since the petitioner is a natural person, and, a suspended Director, and, hence falls within the domain of erstwhile director. Thereupon the immunity, as granted to a corporate debtor, cannot be extended to him. "120. Leave granted. 121. The complaint in the present case was filed by the responde....