TaxTMI 
TaxTMI 
2023 (9) TMI 1014
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.... Shri Sushil Jethmalani, Learned Advocate with Ms. Aaksha Sajnani, Advocate appearing for the resolution professional submits that since in this appeal the proceeding is in favour of the appellant company moratorium provided under Section 14 of IBC does not apply and proceeding can be continued. In this regard he placed reliance on the Delhi High Court order dated 11.12.2017 in case no O.M.P (COMM.)397/2016 in the matter of Power Grid Corporation of India Limited vs. Jyoti Structures Limited. 1.3 As regard merit of the present appeal, he submits that as per department's insistence the appellant had paid the anti-dumping duty subsequently, they have challenged the imposition of anti-dumping duty wherein they succeeded vide CEGAT order dated 15.11.2002. Thereafter, the appellant filed an application for refund on 22.04.2003 in respect of anti-dumping duty along with interest paid by the appellant. By the adjudication order dated 05.11.2003 though the refund was sanctioned but the same was credited into consumer welfare fund on the ground of unjust enrichment. The appellant being aggrieved by the adjudication order dated 05.11.2003 filed writ petition before the Hon'ble High Court ....
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.... IBC Code, the Delhi High Court in its order dated 11.12.2017 in case no O.M.P (COMM.)397/2016 in the matter of Power Grid Corporation of India Limited vs. Jyoti Structures Limited dealt with the provision of Section 14 elaborately given the following observation: - "3. The question now has arisen is if the present proceedings under Section 34 of the Act, need to be stayed, per Section 14 (1)(a) of the Code? 4. The respondent's case is if the proceedings are stayed, the respondent would be unable to execute the award given in its favour for an extended period till the moratorium exists and be unable to recover its dues thereby further impeding its financial condition. Hence, the issue is if the word "proceedings" used in Section 14 (1) (a) of the Code be read to mean 'all legal proceedings'or be read restrictively to mean a particular type of legal proceedings viz., "debt recovery action" which may have an effect of dissipating or diminishing the debtor's assets during the period of its insolvency resolution. 5. Section 14 (1) (a) of the Code runs as under:- "14. (1) Subject to provisions of subsections (2) and (3), on the insolvency commencement....
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....sets 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." 10. In the light of above purpose or object behind the moratorium, Section 14 of the Code would not apply to the proceedings which are in the benefit of the corporate debtor, like the one before this court in as much these proceedings are not a 'debt recovery action' and its conclusion would not endanger, diminish, dissipate or impact the assets of the corporate debtor in any manner whatsoever and hence shall be in sync with the purpose of moratorium which includes keeping the corporate debtor's assets together during the insolvency resolution process and facilitating orderly completion of the process envisaged during the insolvency resolution process and ensuring the company may continue as a going concern. 11. The report of the Bankruptcy Law Reforms Committee on the rationale and design of the Code also demonstrates the moratorium is to apply to recovery actions and filing of new claims against the corporate debtor and the purpose behind moratorium is there should b....
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....hat section 14(1)(a) is intended to have restrictive meaning and applicability; (g) the Arbitration Act draws a distinction between proceedings under section 34( i.e. objections to the award) and under section 36(i.e. the enforceability and execution of the award). The proceedings under section 34 are a step prior to the execution of an award. Only after determination of objections under section 34, the party may move a step forward to execute such award and in case the objections are settled against the corporate debtor, its enforceability against the corporate debtor then certainly shall be covered by moratorium of section 14(1)(a). 15. Hence, the continuation of these proceedings shall cause no harm to either party's rights to seek determination of issues under section 34 of the Act and object of the code shall be preserved rather than defeated. The question posed is thus answered." 4.1 In view of the judgment read with Section 14 it is clear that the moratorium provision would apply to all those proceedings which are against the corporate debtor. However, in the present appeal the proceeding is in favour of the appellant (Corporate Debtor) as in this appeal the appe....