Read the following and answer the questions below based on the relevant case laws and the applicable provisions of the Insolvency and Bankruptcy Code, 2016 ("IBC, 2016") and the Regulations made thereunder in this regard

CS Professional · Insolvency and Bankruptcy - Law and Practice · PYQS · June 2025
Read the following and answer the questions below based on the relevant case laws and the applicable provisions of the Insolvency and Bankruptcy Code, 2016 ("IBC, 2016") and the Regulations made thereunder in this regard. Facts of the case Thakur Engineering Products Private Limited ["the company"] engaged in the business Industrial Machinery supplies. It got Machinery supplies worth ₹ 21,10,11,054/- from a supplier ('Respondent'), which was due and payable by the company. Several cheques were issued by the company in favour of the respondent towards amounts payable for supplies, all of which were returned dishonoured for the reason "funds insufficient". As a result, the respondent issued a statutory demand notice under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 ("NI Act"), calling upon the company and its three Directors, to pay the amount within 15 days of the receipt of the notice. Subsequently, two cheques for a total amount of ₹ 90,80,123/- presented by the respondent for encashment were returned dishonoured for the reason "funds insufficient". A second demand notice was therefore issued under the same Sections by the respondent, calling upon the company and the appellants to pay this amount within 15 days of the receipt of the notice. Since no payment was forthcoming pursuant to the two statutory demand notices, two criminal complaints, were filed by the respondent against the company and the appellants under Section 138 read with Section 141 of the Negotiable Instruments Act before the Additional Chief Metropolitan Magistrate ["ACMM"]. Summons were issued by the ACMM to the company and the appellants in both the criminal complaints. Meanwhile, as a statutory notice under Section 8 of the IBC, 2016 had been issued by the respondent to the company, and an order was passed by the Adjudicating Authority admitting the application under Section 9 of the IBC and directing commencement of the corporate insolvency resolution process with respect to the company, a moratorium in terms of Section 14 of the IBC was ordered. Pursuant thereto, the Adjudicating Authority stayed further proceedings in the two criminal complaints pending before the ACMM. In an appeal filed to the National Company Law Appellate, Tribunal ("NCLAT"), the NCLAT set aside this order, holding that Section 138, being a criminal law provision, cannot be held to be a "proceeding" within the meaning of Section 14 of the IBC, 2016. In an appeal filed before the Court, the Court ordered a stay of further proceedings in the two complaints pending before the learned ACMM. Subsequent thereto, since a resolution plan submitted by the promoters of the company had been approved by the committee of creditors, the Adjudicating Authority approved such plan as a result of which, the moratorium order ceased to have effect. It may only be added that at present, an application for withdrawal of approval of this resolution plan has been filed by the financial creditors of the company before the Adjudicating Authority. Equally, an application to extend time for implementation of this plan has been filed by the resolution applicant before the Adjudicating Authority. Both these applications have yet to be decided by the Adjudicating Authority. On the above background, referring the provisions of IBC, 2016 and applicable case laws answer following questions: Whether moratorium imposed under Section 14 and 85 of IBC, 2016 are subject specific? Whether Section 14(1) applies only to legal proceedings? Explain in detail quoting the relevant provisions of the IBC.

Answer & Explanation:

Sections 14(1)(a) and (b) of the Insolvency and Bankruptcy Code, 2016 together form a scheme which shields the corporate debtor from pecuniary attacks against it in the moratorium period so that the corporate debtor gets breathing space to continue as a going concern in order to ultimately rehabilitate itself. It is clear from the language of Section 85 that it is only in respect of debts, whereas the moratorium contained in Section 14 is not subject specific. The only exception provision is contained in Section 14(3)(a) which is that "transactions" are the subject matter of Section 14(1). "Transaction" is a much wider expression than "debt" and subsumes it. Also, the expression "proceedings" used by the legislature in Section 14(1)(a) is not trammelled by the word "legal" as a prefix that is contained in the moratorium provisions qua individuals and firms. A legal action or proceeding in respect of any debt would, on its plain language, include a Section 138 proceeding. At the heart of the section is the extinguishment of criminal liability of the corporate debtor, from the date the resolution plan has been approved by the Adjudicating Authority, so that the new management may make a clean break with the past and start on a clean slate. Whereas section 14, does not extinguish any liability, civil or criminal, but only casts a shadow on proceedings already initiated and on proceedings to be initiated, which shadow is lifted when the moratorium period comes to an end. Also, section 32(A)(1) operates only after the moratorium comes to an end. ( P. Mohanraj & Ors. V Shah Brothers Ispat Pvt Ltd. ) (Civil Appeal No: 10355 of 2018 dated 1st March, 2021)

Topics: Moratorium under IBC

Open in Interactive Practice Hub · Full Practice Hub · Chapter Weightage · More in this subject

Related Questions in this Topic