TMI Blog2023 (4) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... to the submissions made by learned counsel qua the petitioners not being vicariously liable in view of their status being that of suspended Directors , it would be pertinent to notice that the cheques in question had been issued on 15.09.2019 i.e. prior to the order dated 10.10.2019 passed by the NCLT, Chandigarh Branch, appointing Amit Gupta as IRP. Therefore, there can be no manner of doubt that on the date of issuance of the cheque in question, the petitioners were still in-charge of the management of the affairs of the Corporate Debtor as it was a matter of record that they were its Managing Directors. This Court does not find any merit in the instant petitions and they stand dismissed. - HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL Mr. Apoorv Aggarwal, Advocate, Mr. Abhishek Kumar Jaiswal, Advocate, Mr. Tanmoy Gupta, Advocate and Mr. Gaurav Singh, Advocate for the petitioners ORDER MANJARI NEHRU KAUL, J. (ORAL) 1. This order shall dispose of above mentioned two petitions as they arise out of the same complaint and impugned orders. 2. The petitioners are seeking quashing of Complaint bearing NACT No.68 of 2020 dated 24.01.2020 titled as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till further submits that once a moratorium under Section 14 of the IBC had been declared, proceedings under Section 138 of the NI Act also could not continue against the Corporate Debtor. Learned counsel submits that no doubt proceedings under Section 138 of the NI Act could continue against natural persons mentioned under Section 141 of the NI Act even if a moratorium under Section 14 of the IBC had been declared, however, the petitioners were not seeking protection under Section 14 of the IBC but under Section 96 of the IBC. Learned counsel, while placing reliance upon the judgment of Hon ble the SC in P. Mohanraj and others Vs. Shah Brothers Ispat Private Limited : (2021) 6 SCC 258 argues that the scope of Section 96 of the IBC is much wider than that of Section 14 IBC, therefore, proceedings under Section 138 of the NI Act cannot be permitted to continue or be initiated against the petitioners. 6. While juxtaposing the nature of proceedings of Section 14 and Section 96 of the IBC, Learned counsel vehemently asserts that there is no dispute that Section 14 of the IBC prohibits the institution of suits or continuation of pending suits or proceedings against the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been served upon them. Therefore, the impugned order vide which the petitioners had been summoned deserved to be set aside. In support of his submissions, learned counsel has also relied upon Vijay Kumar Ghai Vs. Pritpal Singh Babbar : (2022) SCCOnLine P H 1672; Stitching Doen Postcode Loterij Vs. Vin Poly Recylers Pvt. Ltd. and others: 2010(115) DRJ 708 (DB) and Axis Trustee Services Limited Vs. Brij Bhushan Singhal and another : 2022 SCC OnLine Del 3634. 10. I have heard learned counsel and perused the relevant material on record. 11. Learned counsel for the petitioner has claimed protection under Section 96 of the IBC. The thrust of the arguments of the learned counsel rest on the contention that the scope of the protection accorded to individuals/firms under Section 96 of the IBC is wider than that of Section 14 of the IBC, therefore, the petitioners would be entitled to protection under Section 96 of the IBC, and criminal proceedings initiated under Section 138 NI Act could not be permitted to continue against them. This Court, however, does not find any force in the contentions raised by the learned counsel for the petitioners for the reasons to follow. 12. As per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate debtor, inclusive of transactions relating to debts, as is contained in Sections 81, 85, 96, and 101. Also, Section 14(1)(d) is conspicuous by its absence in any of these Sections. Thus, where individuals or firms are concerned, the recovery of any property by an owner or lessor, where such property is occupied by or in possession of the individual or firm can be recovered during the moratorium period, unlike the property of a corporate debtor. 14. Furthermore, the Hon ble Supreme Court in P. Mohanraj's case (supra), while referring to the observations made in Ramakrishnan's case (supra), observed as under:- 37. V. Ramakrishnan (supra) looked at and contrasted Section 14 with Sections 96 and 101 from the point of view of a guarantor to a debt, and in this context, held: 26. We are also of the opinion that Sections 96 and 101, when contrasted with Section 14, would show that Section 14 cannot possibly apply to a personal guarantor. When an application is filed under Part III, an interim-moratorium or a moratorium is applicable in respect of any debt due. First and foremost, this is a separate moratorium, applicable separately in the case of personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Corporation of India Ltd.' : 2023(2) R.C.R.(Criminal) 161 wherein the Hon'ble Supreme Court while dealing with the proceedings under Section 138 of the NI Act vis-a-vis proceedings under the IBC, held as under: 16. We have no hesitation in coming to the conclusion that the scope of nature of proceedings under the two Acts are quite different and would not intercede each other. In fact, a bare reading of Section 14 of the IBC would make it clear that the nature of proceedings which have to be kept in abeyance do not include criminal proceedings, which is the nature of proceedings under Section 138 of the N.I. Act. We are unable to appreciate the plea of the learned counsel for the Appellant that because Section 138 of the N.I. Act proceedings arise from a default in financial debt, the proceedings under Section 138 should be taken as akin to civil proceedings rather than criminal proceedings. We cannot lose sight of the fact that Section 138 of the N.I. Act are not recovery proceedings. They are penal in character. A person may face imprisonment or fine or both under Section 138 of the N.I. Act. It is not a recovery of the amount with interest as a debt recovery pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. 19. In Kirshna Texport Capital Markets Ltd Vs. Ila Aggarwal : 2015 (8) SCC 28, the Hon'ble Supreme Court has further held as under:- 17. If the requirement that such individual notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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