2018 (4) TMI 1849 - AT - Insolvency and Bankruptcy

Recovery of amount from the account of the Corporate Debtor - appropriation of amount towards its own dues - the application was already admitted and the moratorium was already declared - HELD THAT - Once the moratorium is in force the financial creditor including the bank has to prefer its claim before the RP which would be considered alongwith other claims as per law - Further it is found that there is direct violation of Section 14(1)(c) which creates a bar prohibiting any action to foreclose recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation Act is also prohibited. Besides there is violations of order of moratorium passed by this Tribunal on 01.06.2017. As there is a direct statutory violation we find that it is a fit case for imposing cost. Accordingly a cost of Rs. 25, 000/- is imposed on the non applicant / respondent. The cost be deposited in the Prime Minister Welfare Fund. While we are not inclined to interfere with the impugned order dated 25th January 2018 but set aside the order whereunder cost of Rs. 25000/- has been imposed and make our interim order dated 21st March 2018 absolute which will continue during the period of moratorium. However after the period of moratorium is over it will be open to the bank to act in accordance with guidelines of Reserve Bank of India to manage the account - Appeal disposed off.

Summary

Issues:
1. Violation of Section 14(1)(c) of the Insolvency and Bankruptcy Code
2. Appropriation of funds during the moratorium period
3. Disputed amount deposited in the Corporate Debtor's account
4. Imposition of cost on the non-applicant

Violation of Section 14(1)(c) of the Insolvency and Bankruptcy Code:
The judgment highlighted a direct violation of Section 14(1)(c), which prohibits any action to foreclose, recover, or enforce any security interest created by the corporate debtor during the moratorium period. The tribunal found that there was a breach of the moratorium order passed by the National Company Law Appellate Tribunal on 01.06.2017. Consequently, a cost of Rs. 25,000 was imposed on the non-applicant for the statutory violation.

Appropriation of funds during the moratorium period:
The judgment emphasized that once the moratorium is in effect, financial creditors, including banks, must submit their claims to the Resolution Professional for consideration along with other claims as per the law. It was ruled that during the moratorium period, the bank cannot recover any amount from the Corporate Debtor's account or appropriate any funds towards its dues. The State Bank of India was directed to roll back all debit entries made in the Corporate Debtor's account after 01.06.2017 and restore the account to its state as of that date.

Disputed amount deposited in the Corporate Debtor's account:
The judgment addressed a disputed amount deposited in the Corporate Debtor's account after the moratorium order. The tribunal held that any funds deposited by any entity, such as the Sales Tax Department, after the moratorium order cannot be appropriated by the bank towards its own dues during the moratorium period. It was clarified that such deposited amounts should not be treated as debited for adjustment by the bank.

Imposition of cost on the non-applicant:
The judgment discussed the imposition of a cost of Rs. 25,000 on the non-applicant for the direct statutory violation and non-compliance with the moratorium order. However, the appellate tribunal set aside the order imposing the cost but made the interim order absolute, which would continue during the moratorium period. After the moratorium ends, the bank was directed to manage the account in accordance with the Reserve Bank of India guidelines. The appeal was disposed of with these observations, and no costs were awarded.