TaxTMI 
TaxTMI 
2026 (4) TMI 1092
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..... Direct attachment and sale of the properties listed in paragraph 5 and 7 of the present Application; b. Direct attachment of the debts stated in paragraph 6 of the Application and consequently direct the proposed Garnishees to make payment to the Petitioner; c. Alternatively, direct the Judgment Debtors to deposit the awarded amount with interest which as on 27.04.2022 is Rs. 385,40,82,657/- (Rupees Three Hundred and Eighty-Five Crores, Forty Lacs, Eighty-Two Thousand, Six Hundred and Fifty-Seven only), or furnish solvent security by means of Bank Guarantee to the satisfaction of this Hon'ble Court; and d. Pass any other order or orders that may be deemed fit and proper by this Hon'ble Court in the interest of justice." 2. At the outset, Mr. Sidhant Kumar, learned counsel for the Decree Holder, has handed over across the bar a list of properties which, according to him, can be proceeded with for the purpose of grant of the prayers as sought for in the present Application. The said list of properties is reproduced for ready reference hereinunder: S.No. Property details Valuation as in July 2022 Reference 1. Shop Space bearing....
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....us categories, including those arising out of judgments or awards are required to be lodged before the RP during the resolution process, as the idea behind such proceedings is to ensure that equanimity is maintained as between the various sets of creditors. He would submit that permitting the present Application to proceed would disturb such parity and result in a situation where the present Decree Holder, in effect, secures a preferential position over other creditors, which is impermissible in law. 7. He also submits that the amount awarded in favour of the Decree Holder has already been accounted for and is reflected in the proposed repayment plan. It is contended that there exists a likelihood of inconsistency between the final determination, rendered on the repayment plan, by the learned National Company Law Tribunal [NCLT] under PIRP and any directions that may be passed by this Court for the present Application. 8. In rebuttal, learned counsel for the Decree Holder submits that if the argument of the learned counsel for the Judgment Debtors were to be accepted, then the express provisions of Section 101 of the IBC would be rendered otiose. Section 101 of IBC is extract....
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....he basis of report submitted by the resolution professional that the application was made with the intention to defraud his creditors or the resolution professional, the order under sub-section (1) shall record that the creditor is entitled to file for a bankruptcy order under Chapter IV." "114. Order of Adjudicating Authority on repayment plan.- (1) The Adjudicating Authority shall by an order approve or reject the repayment plan on the basis of the report of the meeting of the creditors submitted by the resolution professional under section 112: Provided that where a meeting of creditors is not summoned, the Adjudicating Authority shall pass an order on the basis of the report prepared by the resolution professional under section 106. (2) The order of the Adjudicating Authority approving the repayment plan may also provide for directions for implementing the repayment plan. (3) Where the Adjudicating Authority is of the opinion that the repayment plan requires modification, it may direct the resolution professional to re-convene a meeting of the creditors for reconsidering the repayment plan." 10. In view of the above, learned couns....
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.... corporate debtor by means of a resolution plan which must be accepted by 66% of the Committee of Creditors, which is now put at the helm of affairs, in deciding the fate of the corporate debtor. Such resolution plan then puts the same or another management in the saddle, subject to the provisions of the Code, so that the corporate debtor may be pulled out of the woods and may continue as a going concern, thus benefiting all stakeholders involved. It is only as a last resort that winding up of the corporate debtor is resorted to, so that its assets may be liquidated and paid out in the manner provided by Section 53 of the Code. On the other hand, RERA protects the interests of the individual investor in real estate projects by requiring the promoter to strictly adhere to its provisions. The object of RERA is to see that real estate projects come to fruition within the stated period and to see that allottees of such projects are not left in the lurch and are finally able to realise their dream of a home, or be paid compensation if such dream is shattered, or at least get back monies that they had advanced towards the project with interest. At the same time, recalcitrant allottees ar....
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....hat regard. 21. A perusal of Section 101 of the IBC clarifies that the provision is categorical in providing that the moratorium shall cease to have effect upon either the expiry of a period of 180 days from the date of admission of the application, or on the date on which the learned Adjudicating Authority passes an order on the repayment plan under Section 114 of the IBC, 'whichever is earlier'. 22. The use of the expression 'whichever is earlier' clearly evinces the legislative intent that the cessation of the moratorium may occur upon either of the two aforementioned contingencies. Consequently, even in a situation where no order on the repayment plan has been passed, the moratorium would nevertheless come to an end upon expiry of the prescribed period, and proceedings may thereafter be continued in accordance with law. 23. It is noteworthy that, unlike the Corporate Insolvency Resolution Process, wherein Section 14(4) of the IBC expressly stipulates that the moratorium shall operate from the date of the order "till the completion of the corporate insolvency resolution process", the statutory framework governing the PIRP adopts a materially distinct approach. 24. Se....
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....payment plan. 29. However, the submission advanced by learned counsel for the Judgment Debtors proceeds on an entirely different footing. In essence, it is contended that, irrespective of the statutory mandate under the IBC, the present case ought to be examined by invoking the second stage contemplated therein, namely, the stage at which the moratorium ceases upon the passing of an order on the repayment plan, even if such order is made beyond the prescribed period of 180 days. 30. The submission advanced by learned counsel for the Judgment Debtors runs contrary to the statutory scheme of the IBC and, therefore, cannot be accepted. 31. This Court is of the considered view that, as per the legislative mandate, the statutory embargo operating during the subsistence of the moratorium under Section 101 of the IBC is temporary in nature and is intended only to preserve the estate of the debtor during the pendency of the insolvency resolution process. Once the moratorium ceases to operate, the bar against institution or continuation of proceedings stands lifted, thereby restoring to creditors their ordinary remedies in law. 32. In such circumstances, there is presently no le....