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TMI Blog2020 (9) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... idered and admitted by the R.P., after verification of the claim submitted by the Applicant - HELD THAT:- It is about treating payments of EMIs received by the Financial Creditor during the moratorium, as adjusted against the claim. It is also clarified that the remaining amount of the loan will be considered and admitted by R.P. after verification of claim submitted by the Applicant. It is essential to mention that on 06th November 2019 the Applicant/Financial Creditor filed the Petition filed under Section 7 of the Insolvency Bankruptcy Code, 2016, for the initiation of Corporate Insolvency Resolution Process. The public announcement was made on 13th November 2019. After that on 04th December 2019, the Resolution Professional intimated the Bank of the Corporate Debtor to close all active ECS Accounts of the Corporate Debtor and further directed that no further ECS should be debited from the accounts of the Corporate Debtor. Whether, during the currency of the moratorium which has been imposed through Section 14 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC, 2016),can anyamount be released or realised from the total assets of the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] Member ( Technical ) And [ Dr. Alok Srivastava ] Member ( Technical ) For the Appellant : Mr Vikram Wadehra, Ms Vidushi Chokan and Ms Smriti Churiwal, Advocates For the Respondent : None ORDER The Appellant has filed this Appeal against the order passed by the Adjudicating Authority/National Company Law Tribunal, Kolkata Bench, Kolkata in C.P.(I.B.) No.1503/KB/2018, dated 06th July 2020, whereby the Adjudicating Authority has issued direction to the Resolution Professional to reconsider the claim submitted by the Applicant /Financial Creditor under the provisions of Code Regulations and also against the directionto the R.P. to treat the payment of EMIs received by the Applicant/ Financial Creditor, as adjusted against the claim of the Applicant, witha further direction that the remaining amount of loan will be considered and admitted by the R.P., after verification of the claim submitted by the Applicant. Appellant contends that impugned order was passed on 06th July 2020. A free copy was not received by the Appellant. However, the Appellant was informed of the said Impugned Order by the Respondent No.2/Resolution Professional vide an e-mail dated 11th Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to mention that on 06th November 2019 the Applicant/Financial Creditor filed the Petition filed under Section 7 of the Insolvency Bankruptcy Code, 2016, for the initiation of Corporate Insolvency Resolution Process. The public announcement was made on 13th November 2019. After that on 04th December 2019, the Resolution Professional intimated the Bank of the Corporate Debtor to close all active ECS Accounts of the Corporate Debtor and further directed that no further ECS should be debited from the accounts of the Corporate Debtor. Appellant further contends that from 05th December 2019 to 05th March 2020 total ECS amounting to ₹ 2,24,792/- (Rupees Two Lakhs Twenty Four Thousand Seven Hundred Ninety-Two only) was deducted from the Corporate Debtor. Despite, instructions from the Resolution Professional in violation of the moratorium order passed under Section 14 of the I B Code. The Adjudicating Authority vide impugned order allowed the submissions of the claim by Respondent No.1 after due adjustment of the sums received by them during the moratorium period. It is pertinent to mention that CIRP is going against the Corporate Debtor. During CIRP if the Resolution Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r emails to Respondent No. 1 and ICICI Bank on 1.04.2020, 15.04.2020 and 01.05.2020 reminding them of the currency of the moratorium and to refund the amount of ₹ 2,24,792 received by ICICI Bank through four ECSs during the currency of the moratorium. One of these emails asked Kotak Mahindra Prime Limited to file their claim as Financial Creditor in the CIRP of Sunitti Papers Private Limited. Another reminder through email was sent on 01.05.2020 by the RP to the Respondent No. 1. These emails continuously asked Kotak Mahindra Prime Limited and ICICI Bank to refund the amount realised during the moratorium period to the account of Corporate Debtor. 4. In response to the email received from RP and suggestion made therein, Kotak Mahindra Prime Limited filed its claim vide email dated 01.05.2020. This request was not accepted by the RP since it was beyond the 90 days time limit specified in the procedure for submission of claims. It is seen from documents filed with appeal paperbook that neither Respondent No. 1 nor ICICI Bank refunded the amount to the CD s account that was realised through ECS during the moratorium period in the account of the corporate. Aggrieved by decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC, 2016),can anyamount be released or realised from the total assets of the Corporate Debtor and whether the AA was justified in allowing the amount debited from the Corporate Debtor s account in ICICI Bank. To decide whether prima facie case exists in favour of the appellant the issues that are relevant at this stage appear to be: (1) Can preferential treatment be given to any creditor (financial or operations) once order under Section 14 regarding moratorium has been imposed? and (2) Does the Adjudicating Authority or Resolution Professional enjoy any latitude in according preferential treatment to any creditor while the CIRP is going on and the liabilities of various stakeholders are being considered? 9. After hearing the arguments of the Ld. Counsel for Appellant it would be useful to look at the statutory provisions and any judgment or observation on these issues by the Hon ble Supreme Court or NCLAT. 10. The Insolvency and Bankruptcy Code, 2016 contains the following provisions regarding the declaration of moratorium and public announcement after the admission of an application under any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. 11. A reading of the Sections 14 and 15 of the IBC, 2016 makes it clear that the during the currencyof moratorium the sanctity of maintaining the integrity of the assets of the Corporate Debtor is a sine qua non for the CIRP. Section 14(1)(b) prohibits transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein. In view of the blanket prohibition mandated by Section 14 after the initiation of CIRP it stands to reason that any change in the conditions of assets from what existed on the date of initiation of CIRP is not permitted in the normal course. The section 14 also does not give any authority to the RP or AA to accord any preferential treatment to any creditor. 12. The legal position regarding the sanctity and integrity of the moratorium in the CIRP which, inter alia, requires maintaining of the assets of the corporate debtor in the same form as on the date of declaration of moratorium has been considered by Hon ble Supreme Court, which had held as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant after giving notice to the respondents and hearing both sides for a well-thought out and judicious decision. Hence, notices be issued to the respondents to be present in the tribunal and present their cases. The appellant shall provide fees etc. for service alongwith full contact details including postal and email address of the respondents. 16. Through this order I most humbly beg to differ from the view held bymy Hon ble Colleagues in the Bench who have found the appeal fit for dismissal at this stage after hearing the appellant only. I feel that prima facie a case exists as put forth by the appellant and hence, in the interest of justice and for upholding the law as enumerated in IBC, 2016 a proper chance of hearing should be accorded to both the appellant and respondents before the case is finally admitted for hearing. 17. Matter be listed for hearing for admission (after notice). (Dr. Alok Srivastava) Member (Technical) Appeals are dismissed in terms of the order rendered by majority of the Members comprising the Bench. [Justice Bansi Lal Bhat] Acting Chairperson [V.P. Singh] Member (Technical) - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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