TMI Blog2020 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... ergoing CIRP is pending consideration before the Hon'ble NCLAT and of the Hon'ble Supreme Court. It is seen that if the corporate debtor is not permitted to operate the bank accounts, at least to the extent of maintaining the same as a going concern, it will result in closing down the corporate debtor, which is against the object of the Code itself - at this stage, we are not inclined to interfere with the impugned provisional attachment order. However, we permit the applicant-Liquidator of SRS Limited to open a new account in State Bank of India and to operate the same for the purpose of maintaining the corporate debtor company as a going concern, until further orders. However, the applicant has to justify the various transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Bank of India to permit the applicant to operate all the accounts mentioned therein with a total outer limit of ₹ 8 Crores per month for the purpose of maintaining the corporate debtor as a going concern. It is stated that in pursuance of the said order, certain amounts were allowed to be withdrawn, but thereafter, in view of the communication of the impugned Provisional Attachment Order 01/2020 dated 08.01.2020 (Annexure A-5) to the bank, the operations in the accounts were again stopped. It is also stated that the respondent No. 1-Enforcement Directorate has filed a CA seeking vacation of the said interim order. 4. The learned counsel appearing for the applicant while reiterating the submissions made in CA No. 22/2020 i.e. th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement has the jurisdiction to attach the property of the corporate debtor or portion thereof, which is undergoing CIRP, is still to be decided by the Hon'ble NCLAT in JSW Steel Limited (supra) but in view of the stay orders passed by the Hon'ble NCLAT and Hon'ble Supreme Court, in identical circumstances, the impugned order in the instant CA is also required to be stayed pending the final disposal of the instant CA. It is also submitted that if the stay is not granted and the applicant is not permitted to operate its bank accounts, the corporate debtor, which is a going concern, will have to be closed down, which is against the sole object of the Code. 5. The learned counsel appearing for respondent No. 1-Enforcement D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under Section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not-- (a) a promoter or in the management or control of the corporate debtor or a related party of such a person; or (b) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31, which results in the change in control of the corporate debtor to a person, or sale of liquidation assets under the provisions of Chapter III of Part II of this Code to a person, who was not-- (i) a promoter or in the management or control of the corporate debtor or a related party of such a person; or (ii) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court. Explanation.--For the purposes of this sub-section, it is hereby clarified that,-- (i) an action against the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the stage of liquidation. The question of effect of the latest amendment by way of insertion of Section 32A to the Code on the corporate debtor's CIRP and the question of jurisdiction of the Directorate of Enforcement to attach the properties of the corporate debtor or part thereof, which is undergoing CIRP is pending consideration before the Hon'ble NCLAT and of the Hon'ble Supreme Court. It is also not in dispute that both the Hon'ble NCLAT as well as the Hon'ble Supreme Court have stayed an identical attachment order issued by the Directorate of Enforcement, inspite of the decision of the Hon'ble High Court of Delhi in Criminal Appeal No. 143/2018 (supra). 10. It is seen that if the corporate debtor is not p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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