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TMI Blog2022 (12) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 calling upon the stockholders to file their claims along with supporting documentary evidence. Subsequently, Sri Surendra Kumar Agarwal was substituted by a new Liquidator namely, Krishna Kumar Chhaparia, on the basis of the announcement of the Liquidator, the plaintiff has also raised claim but initially the Liquidator had rejected the claim of the plaintiff and being aggrieved with the said order of the Liquidator, the plaintiff had preferred an appeal and accordingly the National Company Law Appellate Tribunal had allowed the appeal of the plaintiff and accordingly the defendant no. 1 has filed his claim before the Liquidator. Now, the plaintiff submits that as the Liquidator has been appointed by the NCLT and as such by deleting the name of the defendant no. 1, the name of the Liquidator is to be substituted in place of defendant no. 1. Perused the application, order passed by the NCLT and other documents. Admittedly, a Liquidator has been appointed in place of the defendant no. 1, and the defendant no. 1 had also filed his claim before the Liquidator and thus this Court finds that the prayer made by the plaintiff is required to be allowed. In view of the above prayers (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. had filed an insolvency petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) against the defendant before the National Company Law Tribunal being CP (IB) 1178 (KB) 2018. On admission of the Company Petition corporate insolvency resolution process was commenced against the defendant company but was not successful and accordingly the Tribunal had appointed one Shri Surendra Kumar Agarwal as the Liquidator in respect of the defendant company. The Liquidator had circulated a public announcement dt. 15th January, 2021 calling upon all the stock holders of the defendant company to submit their respective claims. In the mean time, the Tribunal had replaced Shri Surendra Kumar Agarwal and appointed the petitioner herein as liquidator of the defendant company. On 20th May, 2022, the plaintiff being one of creditor has filed his proof of claim before the Liquidator and the claim made by the plaintiff before the Liquidator is same transaction with the plaintiff has claimed in the present suit. Initially the Liquidator has rejected the claim of the plaintiff on the ground of time barred and being aggrieved by the order of the Liquidator, the plaintiff has preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form part of one scheme and are very important for the decision in the present case. They read as follows: "6. Persons who may initiate corporate insolvency resolution process.-Where any corporate debtor commits a default, a financial creditor, an operational creditor or the corporate debtor itself may initiate corporate insolvency resolution process in respect of such corporate debtor in the manner as provided under this Chapter. 7. Initiation of corporate insolvency resolution process by financial creditor.-(1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the adjudicating authority when a default has occurred. Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred." 21. Section 12 provides for a time-limit for completion of the insolvency resolution process and reads as follows: "12. Time-limit for completion of insolvency resolution process.- (1) Subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of one hundred and eighty days from the date of admission of the application to initiate such process. (2) The resolution professional shall file an application to the adjudicating authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the adjudicating authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be." 23. Under Section 17, from the date of appointment of the interim resolution professional, the management of the affairs of the corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is a major departure from previous legislation on the subject, the moment the adjudicating authority approves the resolution plan, the moratorium order passed by the authority under Section 14 shall cease to have effect. The scheme of the Code, therefore, is to make an attempt, by divesting the erstwhile management of its powers and vesting it in a professional agency, to continue the business of the corporate body as a going concern until a resolution plan is drawn up, in which event the management is handed over under the plan so that the corporate body is able to pay back its debts and get back on its feet. All this is to be done within a period of 6 months with a maximum extension of another 90 days or else the chopper comes down and the liquidation process begins." In the instant case, one of the financial creditors of the defendant had initiated proceeding under Section 7 of the Insolvency and Bankruptcy Code 2016 against the defendant and the Tribunal had admitted the application and appointed Liquidator. The Liquidator had made Public announcement calling upon all the stakeholders of the defendant company for submission of their respective claim, if any, and the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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