Bombay High Court
M/S Shrid Metals Technologies Pvt. Ltd ... vs M/S Sanvijay Rolling And Engineering ... on 2 May, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
45apl436.22.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 436/2022
M/s Shrid Metals Techn ologies Pvt. Ltd and ors ..Versus...M/s. Sanvijay Rolling
and Engineering Ltd
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. G.S.Gour, Advocate for applicants
CORAM : AVINASH G. GHAROTE, J.
DATE : 02/05/2022 1] Heard Mr. Gour, learned counsel for the applicant.
2] The application challenges the issuance of process by the learned JMFC dated 31.7.2018 (pg 49) in proceedings under Section 138 of the Negotiable Instruments Act, filed by the respondent against the applicants. The revision against the aforesaid order filed by the applicant being Criminal Revision No. 181/2019 has been dismissed by the learned Sessions Court by the judgment dated 18.12.2020.
3] Mr. Gour, learned counsel for the applicant submits that the applicant who is the original accused, was the party to proceedings under the Insolvency and Bankruptcy Code, 2016, in CP No. 486/I&BP/2018, under Section 9 of the I&BC, 2016 in which the National Company Law Tibunal, Mumbai Bench by an order dated 16.4.2018 has declared a 45apl436.22.odt 2 moratorium thereby prohibiting the institution and continuation of suits or proceedings against the corporate debtor i.e. the applicant (pg 41) till the completion of the corporate insolvency resolution process or until a resolution plan under Section 31(1) is approved or an order of liquidation of the corporate debtor under Section 33 of the Code is passed. Learned counsel makes a categoric statement upon instructions that no such order under Section 31(1) or Section 33 of the Code has been passed as yet, nor the Corporate Insolvency Resolution Process has been completed till date and therefore the moratorium continues.
4] It is submitted that the cheque in question is dated 13.4.2018. On 16.4.2018, the insolvency professional was appointed on which day itself, the moratorium has been issued. The respondent was throughout aware of this, as the respondent has lodged his claim before the IP which is reflected from the statement of claims received by the IP (pg 46, Sr.No. 27), which was lodged by the respondent with the IP on 30.4.2018 and as such the cheque ought not to have been presented and the proceedings under Section 138 of the N.I. Act ought not to have been filed on 22.6.2018. Placing reliance upon Shri Mohanraj and ors vrs. Shah Brothers Ispat Private Limited (2021) 6 SCC 258, it is contended that the institution of proceedings under Section 138 of N.I. Act fall 45apl436.22.odt 3 within the expression "proceedings" as occurring in Section 14(1)(a) of the I&BC Code, 2016, as a result of which the proceedings before the learned Magistrate, cannot be continued on account of the moratorium. It is submitted that the appointment of the IP and the granting of the moratorium by the order dated 15.4.2018 was pointed out to the Courts below, however, that has not been considered.
5] Issue notice for final disposal of the matter, returnable on 13.6.2022.
6] Though the applicant no.1 would be the corporate debtor and entitled to the benefit of the moratorium, however, since the applicant Nos. 2 to 4 are its directors and who are being sued in that capacity, there shall be an interim order in terms of prayer clause (iv), till the returnable date.
JUDGE Rvjalit Digitally sign byRAJESH VASANTRAO JALIT Location:
Signing Date:02.05.2022 18:48