TMI Blog2022 (12) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... orce and thus the suit cannot be proceeded further as the claim made by the plaintiff in the instant suit is similar to the claim raised before the Liquidator - Section 61 of the Code provide for an appeal. In case the Liquidator rejects the claim of the plaintiff, the plaintiff is having remedy of an appeal. This Court held that the suit filed by the plaintiff is cannot be proceeded further and thus CS No. 1 of 2016 is dismissed. The Registrar, Original Side of this Court is directed to release the Bank Guarantees submitted by the defendant no.1 in terms of the order passed by this Court in favour of the Liquidator Shri Krishna Kumar Chhaparia - Application disposed off. - CS/1/2016 IA No. GA/3/2022 GA/4/2022 - - - Dated:- 24-11-2022 - The Hon ble JUSTICE KRISHNA RAO For the plaintiff. Mr. D. Nand Misra, Adv. Mr. Prashant Kumar Singh, Adv. For the defendants. Mr. Rachit Lakhmani, Adv. Mr. Vikash Singh, Adv. Ms. Arunima Mukhopadhyay, Adv. Mr. Rathindra Nath Bandhopadhyay, Adv. ORDER GA 3 of 2022 The plaintiff has filed the instant application for amendment in the plaint by deleting the name of the defendant no. 1 by substituting the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues. The said company petition was disposed of by this Court on 11th September, 2013 by passing the following order : This opportunity is given to the company upon their furnishing a bank guarantee securing the entire claim of the petitioning creditor till 20th November 2013, for Rs. 37,49,329/-. The company will furnish a bank guarantee for Rs. 10 lakhs in favour of the Registrar, Original Side, by 30th September, 2015. It will furnish bank guarantees of Rs. 5 lakhs each by the end of every quarter, the first quarter ending on 31st December 2015 in a similar manner to the Registrar, Original Side. The last bank guarantee may be of the sum of Rs. 3 lakhs. The company will be furnished upon intimation to the petitioning creditor. The petitioning creditor will have to file a suit by 23rd November, 2015. If the suit is not filed by the petitioning creditor, the bank guarantee will be discharged and returned to the company. If there is default in furnishing any of the bank guarantees, the winding up application may be activated by application before this Court for immediate admission. Upon the bank guarantees being furnished, the petitioning creditor will have to prove its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fixed assets of the defendant company and to complete the liquidation process in respect of the defendant company in terms of the IBC. Section 238 of the Insolvency and Bankruptcy Code 2016 reads as follows : 238. Provisions of this Code to override other laws. The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument have effected by virtue of any such law. In the case reported in (2017) SCC Online Del 12759, the Delhi High Court held that 2. It appears to the Court that Section 238 of the Code is categorical that the Code will apply, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 14(1)(a) of the Code states, inter alia, that on the insolvency commencement date the Adjudicating Authority (AA) shall by order declare moratorium for prohibiting the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority. That the Code will pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (3). (5) Where the adjudicating authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the adjudicating authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the adjudicating authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5). (7) The adjudicating authority shall communicate- (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess beyond one hundred and eighty days by such further period as it thinks fit, but not exceeding ninety days: Provided that any extension of the period of corporate insolvency resolution process under this section shall not be granted more than once. 22. Sections 13 and 14 deal with the declaration of moratorium and public announcements and read as under: 13. Declaration of moratorium and public announcement.-(1) The adjudicating authority, after admission of the application under Section 7 or Section 9 or Section 10, shall, by an order- (a) declare a moratorium for the purposes referred to in Section 14; (b) cause a public announcement of the initiation of corporate insolvency resolution process and call for the submission of claims under Section 15; and (c) appoint an interim resolution professional in the manner as laid down in Section 16. (2) The public announcement referred to in clause (b) of sub-section (1) shall be made immediately after the appointment of the interim resolution professional. 14. Moratorium.-(1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority and a public announcement is made stating, inter alia, the last date for submission of claims and the details of the interim resolution professional who shall be vested with the management of the corporate debtor and be responsible for receiving claims. Under Section 17, the erstwhile management of the corporate debtor is vested in an interim resolution professional who is a trained person registered under Chapter IV of the Code. This interim resolution professional is now to manage the operations of the corporate debtor as a going concern under the directions of a committee of creditors appointed under Section 21 of the Act. Decisions by this committee are to be taken by a vote of not less than 75% of the voting share of the financial creditors. Under Section 28, a resolution professional, who is none other than an interim resolution professional who is appointed to carry out the resolution process, is then given wide powers to raise finances, create security interests, etc. subject to prior approval of the committee of creditors. 33. Under Section 30, any person who is interested in putting the corporate body back on its feet may submit a resolution plan to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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