Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 4524

IN THE HIGH COURT OF DELHI AT NEW DELHI
Jasmeet Singh, J.
Sandeep Gupta – Appellant
Versus
Shri Ram Steel Traders & Anr. – Respondents
Cr.M.C. 381 of 2022 & Cr.M.A. 1727 of 2022, Cr.M.A. 13434 of 2022
Decided On : 15-05-2023

Advocates appeared:
Mr. Shashank Khurana, Advocate, for the Petitioner.
Mr. Shailendra Babbar, Mr. Avinash Das, Mr. Aayush Agarwala, Mr. Siddham Nahata, Advocates, for the Respondents.

The moratorium provisions under Section 14 IBC apply only to the corporate debtor, and natural persons continue to be liable under the NI Act, and personal insolvency proceedings do not absolve natural persons from their penal liability under the NI Act.

Headnote:
IBC - Applicability of Section 96 - Sections 138 and 141 of NI Act - [Section 96 of IBC] - The court discussed the applicability of Section 96 of the IBC to the petitioner's personal insolvency resolution process and the pending complaint under Sections 138 and 141 of the NI Act. The court emphasized that the moratorium provisions under Section 14 IBC apply only to the corporate debtor, and natural persons continue to be liable under the NI Act. The court also highlighted that the debt in the present case is not of the petitioner but that of Respondent No.2, and the petitioner, as the Managing Director, is covered under the natural person under Section 141 of the NI Act. The court concluded that the provisions of Section 96 of the IBC would not be applicable in the present case, and the petitioner cannot escape from his penal liability under Section 138 of the NI Act by filing personal insolvency proceedings.
Fact of the Case:

The petitioner, as the Managing Director of Respondent No.2, faced a complaint under Section 138 of the NI Act for the dishonour of a cheque issued by the company. The petitioner filed an application under Section 94 of the IBC for personal insolvency resolution process, seeking a stay of the subject proceedings pending before the trial court.
Finding of the Court:

The court found that the provisions of Section 96 of the IBC were not applicable to the petitioner's personal insolvency resolution process and the pending complaint under Sections 138 and 141 of the NI Act. The court emphasized that the moratorium provisions under Section 14 IBC apply only to the corporate debtor, and natural persons continue to be liable under the NI Act. The court concluded that the petitioner cannot escape from his penal liability under Section 138 of the NI Act by filing personal insolvency proceedings.
Issues: The primary issue was the applicability of Section 96 of the IBC to the petitioner's personal insolvency resolution process and the pending complaint under Sections 138 and 141 of the NI Act.
Ratio Decidendi: The court held that the provisions of Section 96 of the IBC would not be applicable in the present case, and the petitioner cannot escape from his penal liability under Section 138 of the NI Act by filing personal insolvency proceedings.
Final Decision: The court dismissed the petition, finding no illegality in the impugned order dated 03.12.2021 passed by the trial court.

JUDGMENT

Jasmeet Singh, J.

1. The present petition is filed seeking quashing of impugned order dated 03.12.2021 passed by the Ld. Metropolitan Magistrate (New Delhi -01), Patiala House Court, New Delhi in CT No.12161/2018 titled `Shri Ram Steel Traders vs. Richa Industries Limited and Ors.'

2. The facts of the present case are that the complaint, being CT No 12161/2018, was filed by Respondent No.1-Shri Ram Steel Traders, against the Petitioner and Respondent Nos. 2-Richa Industries Limited, under Section 138 read with Section 141 and 142 of the Negotiable Instrument Act, 1881 (hereinafter called NI act) before the Metropolitan Magistrate, NewDelhi-01, Patiala House Court, New Delhi.

3. The petitioner was the Managing Director of Respondent no. 2. The respondent no.1 alleged that the Petitioner and Respondent no 2 approached Respondent no.1 for purchase of steel. On placing of purchase orders, materials have been alleged to have been supplied to Respondent no.2 on credit. In discharge of debt, respondent no.2 issued cheque no. 424055 dated 24th march 2018 drawn on Corporation Bank, Faridabad for a sum of Rs. 6 crores. The cheque was signed by the petitioner for and on behalf of respondent no.2. The cheque on presentation was dishonored and hence the complaint.

4. During the pendency of complaint, the petitioner started facing mounting liabilities and two of his creditors, HDB Financial Services and Indian Overseas Bank invoked their respective guarantees in 2019 that had been given by the Petitioner for credit facilities that had been availed from them. In view of such liabilities, and his incapacity to pay his liabilities, the Petitioner was constrained to approach the National Company Law Tribunal, Chandigarh Bench for devising an effective resolution plan in respect of his debts.

5. During the pendency of the National Company Law Tribunal (herein after called NCLT) proceedings, an application under Section 94 of the Insolvency and Bankruptcy Code (hereinafter called IBC) was filed by the Petitioner for personal insolvency resolution process in respect of all his debt before the NCLT, Chandigarh Bench. The application upon being filed on 24.08.2020 was initially given Diary No.0404115/00887/2020.

6. Subsequently, this petition has been duly numbered as C.P.(IB) No.88/Chd/Hry/2021 and is at present pending before the NCLT, Chandigarh Bench.

7. It is stated by the ld counsel for the petitioner that in view of the above petition having been moved under Section 94 of the IBC, an interim moratorium immediately came into effect under Section 96 of the IBC. Consequently, the subject proceedings were liable to be stayed. The Petitioner moved an application for stay of the subject proceedings pending before the Ld. MM, New Delhi -01, Patiala House Courts, New Delhi on 21.10.2021.

8. The Respondent No.1, who was the complainant in the subject proceedings, did not prefer any reply to the subject application. The Ld. Metropolitan Magistrate heard arguments from both the parties and passed the impugned order dated 03.12.2021 vide which the Ld. MM refused to stay of the criminal complaint filed by Respondent No.1 and dismissed the application moved by the Petitioner.

9. It is submitted by Ld counsel for petitioner that the provisions of the IBC make it clear that immediately upon filing of an application under Section 94 of the IBC, an interim moratorium comes into existence in respect of all the debts of the concerned petitioner and any legal action or proceedings pending in respect of any debt shall be deemed to have been stayed. Section 96, of the IBC reads as under:

"96. Interim-moratorium -(1) When an application is filed under section 94 or section 95

(a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application; and

(b) during the interim-moratorium period

(i) any legal action or proceeding pending in respect of an