9911796707
TMI Blog2021 (2) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) and section 238 of thereof, praying for the following reliefs: i. Direct R1 to immediately refund/deposit the sum of Rs. 1,23,93,968/- back to the account maintained by the Corporate Debtor with R2; ii. Direct R2 to strictly adhere to the provisions of section 17(1)(d) and henceforth only consider instructions of the Applicant RP for any "debits" to the account of the Corporate Debtor maintained with R2. iii. Pass necessary directions requiring R1 to file an Affidavit confirming that it would refrain from taking any further adverse actions either against the Corporate Debtor or its assets during the "Moratorium" period. 2. The Applicant submits that he is the RP of the Corporate Debtor which was put under Corporate Insolvency Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eping the Corporate Debtor as a going concern as ordered by the Hon'ble NCLAT. 5. The Applicant submits that on 10-4-2019, R1 conducted tax assessment for the year 2014-15 and passed assessment order against the Corporate Debtor, wherein the Corporate Debtor was ordered to pay a sum of Rs. 1,03,90,443/-. The Applicant filed an Appeal against the Assessment Order before Gujarat Value Added Tax Tribunal (GVAT) on 11-10-2019 and the Hon'ble GVAT Tribunal by an order dated 11-10-2019 directed R1 not to take any coercive action and adjourned the matter to 10-12-2019. However, the matter was not heard on 10-12-2019 and the next date of hearing was also not fixed. R1 issued a notice to R2 on 9-6-2020 under section 44 of the GVAT Act and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for prohibiting all of the following, namely: - (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing off by the corporate debtor any of its assets or any legal right or beneficial 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 (54 of 2002); (d) the recovery of any property by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(3) The provisions of sub-section (1) shall not apply to - [(a) such transactions, agreements or other arrangement as may be notified by the Central Government in consultation with any financial sector regulator or any other authority; (b) a surety in a contract of guarantee to a corporate debtor.] (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 cease to have ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP as an operational creditor, R1 cannot take away the money in this manner which is against the provisions of the waterfall mechanism provided under section 53 of the Code. 13. Even though the CIRP period was over and the liquidation order passed by this Bench was stayed by the Hon'ble Appellate Tribunal and the direction was given that the RP will manage the company and ensures that the company will remain as a going concern, we are of the considered opinion that CIRP is still continuing. Thus the Moratorium provided u/s 14 is in operation and the action of R1 is hit by section 14(1)(a) of the Code. 14. In view of the above discussion we direct R1 to refund the sum of Rs. 1,23,93,968/- to the account of the Corporate Debtor maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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