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2020 (1) TMI 1533 - Tri - Companies LawLiquidation process - action shall be taken against the property of the Corporate Debtor in relation to an offence committed prior to the commencement of CIRP or sale of liquidation assets under the provisions of Chapter III of Part II of the Code, or not - Section 32A inserted by way of Ordinance dated 28.12.2019 - HELD THAT:- It becomes clear that no action including attachment can be taken against the liquidation assets of the CD, for the offences committed prior to the commencement of the CIRP. The Ordinance operates with retrospective effect. It is further submitted that vide notification dated 31.03.2017 the State of Maharashtra has lodged a complaint against the CD viz., M/s. Namdhari Food International Pvt. Ltd., alongwith other entities on the accusation of the investors that they have deposited the money with NSEL but were defrauded. Further, the offences have been registered against the accused by EoW vide CR No. 89/13 under Section 409, 465, 467, 468, 471, 474, 477(A) and 120 (B) of Indian Penal Code, 1860 (IPC) read with Section 3/4 of Maharashtra Protection of Interest of Depositors (in financial establishment) Act, 1999 (MPID Act). It is prayed that the attachment order dated 22nd of October, 2018 and r/w 31.03.2017 needs to be vacated in order to give effect to the provisions of the IBC to proceed with the liquidation process of the CD and to sell the assets as prescribed, so as to distribute the proceeds to the creditors as per the water fall mechanism provided under Section 53 of the IBC [subject to the provisions of 52 of the Code]. The Investors/Creditors cannot raise any objection as they were at liberty to file their claims with the liquidator within the stipulated time under Section 35 (j) of the IBC, 2016. The submissions of the liquidator are plausible, which are accepted. The registration of CR No. 89/13 under the Provisions of the IPC and the MPID Act, is in relation to the alleged offences committed by the erstwhile management of the CD and other entities. But the Company (CD) cannot be prosecuted under the said provisions. Hence, the satisfaction of the claims of the creditors of the CD is possible only under the provisions of IBC. Therefore, in public interest, the Order dated 22nd October, 2018 read with notification dated 31st of March, 2017 is hereby set aside on the grounds stated by the Ld. Counsel for the Liquidator. Application disposed off.
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