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TMI Blog2018 (2) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... ts covered by 9 invoices under 9 EPCG licences as per schedule to be released from CFS immediately upon payment of custom duty by the Plaintiff; b) for a mandatory injunction directing the First Defendant to pay all the detention charges and demurrage till the date of release to the 2nd defendant and other statutory bodies so that the 87 containers can be released from CFS. c) Permanent injunction restraining the first defendant herein by itself, or its assigns or any person claiming through or under it, claiming any lien, charge, security on the 87 units as per schedule for the amounts outstanding; d) A permanent injunction restraining the second defendant from disposing or auctioning the cargo covered by the 9 invoices under the nine licenses as per schedule and e) for costs. 3. It appears that several interlocutory applications were taken out in the suit for injunction restraining the 1st defendant, viz. M/s.Geodis Overseas Pvt. Ltd. (India) from encashing the Bank guarantees executed by the plaintiff. Several orders were passed from time to time by this Court. The earliest of the orders passed was on 21.04.2011 in OA No.87 of 2011 and Application No.1397 of 2011. The origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, the first defendant shall pay the entire detention and other charges to the liner and obtain a valid delivery order in original. (v) Within a week of procuring the delivery order from the liner, the first defendant shall submit the other documents such as Bill of Entry, Examination Order and the relevant certificates from the Customs Department, to the second defendant and also pay the entire demurrage charges as claimed by the second defendant. Immediately thereafter, the first defendant shall destuff the containers and arrange to dispatch them to the location at which the cargo was to be delivered by the first defendant, as per their original contract. (vi) Within a week from today, the second defendant shall surrender the fixed deposit receipt handed over by the plaintiff in pursuance of the orders passed on 28.1.2011, to the Registrar General. The Registrar General shall sign the necessary discharge or make necessary endorsement on the original fixed deposit receipt and hand over the same to the counsel for the first defendant, upon the counsel for the first defendant producing proof (a) that the Customs Department had cleared the cargo (b) that the liner has issued val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges as per the directions of this Court made in the order dated 21.04.2011. It is also not in dispute that the plaintiff in the suit, which was directed to pay 50% of the said amount, amounting to Rs. 3,05,42,956.98 had not come forward to pay the said sum despite demands made by the defendant. In view of the nonpayment, the first defendant in the suit filed application No.4318 of 2011 in this Court to attach the cargo lying in the factory premises of the plaintiff, bring the same to the custody of the Court and to sell the same for realization of the dues as per the order dated 21.04.2011. 5. This application was essentially one for enforcement of the lien created in favour of the defendant by this Court in Paragraph 31.(viii) of the order dated 21.04.2011. This Court, after hearing the parties, passed the following order on 04.07.2012: "16. In the result, this application is ordered by directing the plaintiff to deposit Rs. 3,05,42,956.98 within one week from the date of receipt of this order, failing which the cargo lying at the factory premise of the plaintiff at K.R.S.Road, Metagali, Mysore, Karnataka shall stand attached and be brought to the custody of this Court to be b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before 30.11.2015. The second instalment of Rs. 1,00,00,000/- shall be deposited on or before 01.02.2016 and third instalment of Rs. 1,05,42,956/- on or before 31.03.2016. On the failure of the applicant/plaintiff to comply with the payment of instalments, as stated above, 17 items, as mentioned in the list of machineries submitted by the applicant/plaintiff, shall be brought for sale and after defraying the expenses for attachment and for bringing the same into the custody of the Court and for conducting the public auction the balance sum shall be deposited to the credit of the suit C.S.No.65/2011 and the amount due to the first defendant shall be realised from and out of such amount in terms of the earlier orders. If there is any short fall, it shall be deposited by the applicant/plaintiff, failing which, the earlier order for bringing other properties for sale shall prevail. 8. It is conceded at the bar that this consent order was also not complied with. Hence, the 1st defendant in the suit, viz. Geodis Overseas Pvt Ltd., filed an application in Application No.341 of 2017 with a prayer to appoint a retired District Judge or such other person as deemed fit as a Commissioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial interest therein; (c) 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 and Reconstruction of Financial Assets 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 cea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra Act would directly clash with the moratorium to be issued under Sections 13 and 14 of the Code. It will be noticed that whereas the moratorium imposed under the Maharashtra Act is discretionary and may relate to one or more of the matters contained in Section 4(1), the moratorium imposed under the Code relates to all matters listed in Section 14 and follows as a matter of course. In the present case it is clear, therefore, that unless the Maharashtra Act is out of the way, the Parliamentary enactment will be hindered and obstructed in such a manner that it will not be possible to go ahead with the insolvency resolution process outlined in the Code. Further, the non-obstante clause contained in Section 4 of the Maharashtra Act cannot possibly be held to apply to the Central enactment, inasmuch as a matter of constitutional law, the later Central enactment being repugnant to the earlier State enactment by virtue of Article 254 (1), would operate to render the Maharashtra Act void vis-à-vis action taken under the later Central enactment. Also, Section 238 of the Code reads as under: Sec. 238. Provisions of this Code to override other laws.- The provisions of this Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... almost 7 years now since the 1st order was passed on 21.04.2011 by Hon'ble Mr. Justice V.Ramasubramaniam. 17. It is rightly pointed out by Mr.APS.Ahluwalia, learned Senior Counsel appearing for the respondent/defendant in the suit that the respondent/defendant has obeyed all the orders of this Court and therefore he cannot be penalized for obeying the orders of this Court. The sum and substance of the contentions of Mr.APS.Ahluwalia, learned Senior Counsel is that having obeyed the orders under the firm belief that it would get back the money spent by it, the respondent cannot be made to wait till the conclusion of the Insolvency Resolution process. All that this Court can do in the present situation is only to sympathize with the 1st respondent/defendant. A bare perusal of the earlier orders passed by this Court would show that the plaintiff in the suit M/s.Falcon Tyres Ltd., is a consistent and willful defaulter. But, in view of Section 14 of the Code, this Court is denuded of the power to proceed against the properties of a consistent defaulter also. 18. The language of Section 14 leaves no room for doubt that the proceedings contemplated under Clauses (a) to (d) of Subsection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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