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TMI Blog2024 (11) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The cheques, on presentation for collection, returned stating reason "Funds insufficient". After causing statutory notice, complaints filed against i) the Company ii) A.M.Arun, the Managing Director and iii) Mrs.Meera, the Director. Pending trial, yet another creditor of the petitioner company by name M/s.Alcon Laboratories filed application under Section 9 of Insolvency and Bankruptcy Code, 2016 (in short "IBC") before the National Company Law Tribunal, Chennai Branch (in short NCLT, Chennai). By an order dated 21/04/2017, the 1st accused company was admitted into the Corporate Insolvency Resolution Process (in short "CIRP") and one V.Mahesh was appointed as Interim Resolution Professional (IRP). While so, the second accused A.M.Arun, the representative of the first accused company and the Signatory of the cheques died on 16/11/2020. Later, by an order dated 23/04/2021 NCLT, Chennai appointed Mr.S.Rajendran as Resolution Professional of the 1st accused company. 3. According to the petitioner, as per the resolution plan approved by the NCLT, vide order dated 03/02/2023 the Company has been taken over by the successful resolution applicant M/s.ASG Hospital (P) Ltd. The claims of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, Chennai. 08.07.2015 500000 10.07.2015 500000 15.07.2015 500000 8. 308 of 2016 Metropolitan Magistrate, (FTC-II) Egmore, Chennai. 19.09.2015 1000000 9. 3088 of 2016 Metropolitan Magistrate, (FTC-II) Egmore, Chennai. 06.07.2015 500000 13.07.2015 500000 8. On application by one of the operational creditor M/s.Alcon Laboratories (P) Ltd under Section 9 of IBC, 2016, for alleged default in payment of Rs. 86,65,75,855/-, the NCLT, Chennai Bench vide order dated 21/04/2017 taking note of the default in adhering the payment schedule agreed by the petitioner company, allowed the application and ordered commencement of the Corporate Insolvency Resolution Process to be ordinarily completed within 180 days and for the said purpose appointed Mr.V.Mahesh as Interim Resolution Professional. Also NCLT declared moratorium for proceedings against the Corporate Debtor with effect from the date of order till the completion of Corporate Insolvency Resolution Process. 9. The above order of NCLT was stayed by High Court of Madras for a brief period in a Petition filed for winding up. Later, the stay was vacated by the Division Bench on 05/09/2019 with observation that the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as all prosecutions emanating 3 from private complaints would be excluded. Obviously, Section 32- A(1) cannot be read in this fashion and clearly includes the liability of the corporate debtor for all offences committed prior to the commencement of the corporate insolvency resolution process. Doubtless, a Section 138 proceeding would be included, and would, after the moratorium period comes to an end with a resolution plan by a new management being approved by the adjudicating authority, cease to be an offence qua the corporate debtor. 43. A section which has been introduced by an amendment into an Act with its focus on cesser of liability for offences committed by the corporate debtor prior to the commencement of the corporate insolvency resolution process cannot be so construed so as to limit, by a sidewind as it were, the moratorium provision contained in Section 14, with which it is not at all concerned. If the first proviso to Section 32-A(1) is read in the manner suggested by Shri Mehta, it will impact Section 14 by taking out of its ken Sections 138/141 proceedings, which is not the object of Section 32-A(1) at all. Assuming, therefore, that there is a clash between Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , even while overruling its decision in Anil Hada v. Indian Acrylic Ltd. [Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 : 2001 SCC (Cri) 174], as not laying down the correct law insofar as Anil Hada [Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 : 2001 SCC (Cri) 174] states that the Director or any other officer can be prosecuted without impleadment of the company, proceeded to hold that the matter would stand on a different footing where there is some legal impediment as the doctrine of lex non cogit ad impossibilia gets attracted. It was specifically observed that the decision in Anil Hada [Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. Considering the same, the ratio of the decision of this Court in Ajit Balse [Ajit Balse v. Ranga Karkere, (2015) 15 SCC 748 : (2016) 3 SCC (Civ) 465 : (2016) 3 SCC (Cri) 379] upon which strong reliance is placed on behalf of the appellant is of no avail. 72. What follows from the aforesaid is that for difficulty in prosecuting the corporate debtor under Section 138 of the NI Act after the approval of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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