Delhi High Court - Orders
Manoj Mahendra Somani & Ors vs Ofb Tech Private Limited & Anr on 15 February, 2023
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1055/2023 and Crl.MA.No.4038-39/2023
MANOJ MAHENDRA SOMANI & ORS. ..... Petitioners
Through: Mr.Adity Kumar and Mr.Parv Verma,
Advocates.
versus
OFB TECH PRIVATE LIMITED & ANR. ..... Respondents
Through: Ms.Kriti Gupta, Advocate and
Mr.Nipun Gupta, AR in person.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 15.02.2023
1. This petition is filed with the following prayers:-
I. Quash the criminal proceedings in CT. Case No.30525/2019 qua the Petitioners; and/or II. Pass any such further orders as this Hon'ble Court may deem fit and proper in the interests of justice.
2. Admittedly, the respondents filed a case under Section 138 NI Act on 21.09.2019, on dishonour of subject cheques dated 30.07.2019, vide return memo dated 02.08.2019. It is submitted an insolvency petition being CP No.(IB)08/9/NCLT/AHM/2019 under Section 9 of IBC was admitted on 02.05.2019 by the learned Adjudicating Authority, NCLT Ahmedabad Bench. The resolution process was conducted and respondent No.2 was made a part of Committee of Creditors. The resolution plan was approved on 07.08.2020 wherein the name of the respondent No.2 appeared at Sr No.10 (page No.208) with a share of voting right of 1.24%. Thus, it is submitted the respondent No.2 as had participated in the resolution plan, has since been granted voting right, the petition under Section 138 NI Act against petitioners would not be maintainable, moreso, when the cheques issued in favour of respondent No.1 were only to clear the debt of respondent No.2, a Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:17.02.2023 16:47 sister concern of respondent No.1.
3. It is alleged since the petitioners had stopped functioning in the company on or after 02.05.2019, i.e. the date on which the Insolvency petition was admitted, hence, were not in a position to make payment of the subject cheques, drawn on 30.07.2016 and thus dishonoured vide returning memo dated 02.08.2019 and also in view of the fact the respondent No.2 had participated in the resolution plan, hence the petitioners are absolved from any personal liability.
4. The learned counsel for respondents appearing on advance notice referred to P.Mohanraj vs Shah Brothers Ispat Private Limited (2021) 6 SCC 258, and para 102 of it is relevant :
102. 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 (supra) 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 Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act.
5. Thus per judgment above, the petitioners in their capacities as full time directors with an allegation against them of being responsible for day to day functioning of the corporate debtor, can't shrunk their liability alleging their company had gone into liquidation. Any settlement of 1.24% voting rights in my considered opinion would not absolve them of their Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:17.02.2023 16:47 liability under the Act. The question if they were responsible or were incharge at the relevant time, in view of their contradictory stands, would be a question of trial, hence the complaint cannot be quashed at this initial stage. The petition is thus dismissed. Pending applications, if any, are disposed of. Order dasti.
YOGESH KHANNA, J.
FEBRUARY 15, 2023 M Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:17.02.2023 16:47