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TMI Blog2020 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bankruptcy Code, 2016, (hereinafter referred to as the 'Code') read with Rule 11 of the National Company Law Tribunal Rules, 2016, questioning the Provisional Attachment Order 01/2020 dated 08.01.2020 issued by respondent No. 1-Directorate of Enforcement. 2. We have heard the learned counsel for the applicant/liquidator and the learned counsel for respondent No. 1/Enforcement Directorate. 3. The applicant earlier filed CA No. 22/2020 questioning the letter dated 08.01.2020 issued by the Directorate of Enforcement to the Branch Manager, State Bank of India, SME Branch, Delhi, directing to stop the operations of four bank accounts of the corporate debtor i.e. SRS Limited in the said Branch. This Tribunal, vide an ex-parte order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the assets of a corporate debtor undergoing the Corporate Insolvency Resolution Process (CIRP)/Liquidation Process. It is also stated that in the order dated 14.10.2019 passed in JSW Steel Limited Versus Mahender Kumar Khandewal and Another; Company Appeal (AT) (Insolvency) No. 957 of 2019, an identical attachment order was stayed by the Hon'ble National Company Law Appellate Tribunal (NCLAT). In order dated 18.12.2019, passed in Special Leave Petition No. 29327-29328/2019; Committee of Creditors Versus Directorate of Enforcement and Others, filed against the said order of the Hon'ble NCLAT, the Hon'ble Supreme Court, vide its order 18.12.2019 also stayed the attachment order passed by the Directorate of Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor is out of the properties purchased from the proceeds of crime only and hence, the same cannot be permitted to be operated upon, till the Competent Court under the Prevention of Money Laundering Act, 2002, decides the issue finally. However, the learned counsel admitted that though the impugned attachment order was passed on 08.01.2020, the respondent has not filed the case before the Competent Court till date and that the applicant cannot approach the said Court till they file a case before the said Court. 7. It is also to be seen that the Code has been amended recently by way of an Ordinance by inserting Section 32A and the said provision, reads as under:- "[32A.--(1) Notwithstanding anything to the contrary contained in this Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor's liability has ceased under this sub-section. (2) No action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process of the corporate debtor, where such property is covered under a resolution plan ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s section, the corporate debtor and any person, who may be required to provide assistance under such law as may be applicable to such corporate debtor or person, shall extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process.]" 8. It is also stated that the Hon'ble NCLAT in JSW Steel Limited (supra) directed the Enforcement Directorate and the Ministry of Corporate Affairs to file affidavits indicating their stand on the latest amendment and the applicability thereof, to the corporate debtors undergoing CIRP process. 9. It is also not in dispute that the applicant-corporate debtor is a going concern and undergoing the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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