Bombay High Court
M/S Shrid Metals Technologies ... vs M/S Sanvijay Rolling And ... on 2 May, 2022
Bench: Avinash G. Gharote
45apl436.22.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 436/2022
M/s Shrid Metals Techn ologies Pvt. Ltd and ors ..Versus...M/s. Sanvijay Rolling
and Engineering Ltd
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. G.S.Gour, Advocate for applicants
CORAM : AVINASH G. GHAROTE, J.
DATE : 02/05/2022
1] Heard Mr. Gour, learned counsel for the applicant.
2] The application challenges the issuance of process
by the learned JMFC dated 31.7.2018 (pg 49) in proceedings
under Section 138 of the Negotiable Instruments Act, filed by
the respondent against the applicants. The revision against the
aforesaid order filed by the applicant being Criminal Revision
No. 181/2019 has been dismissed by the learned Sessions
Court by the judgment dated 18.12.2020.
3] Mr. Gour, learned counsel for the applicant
submits that the applicant who is the original accused, was the
party to proceedings under the Insolvency and Bankruptcy
Code, 2016, in CP No. 486/I&BP/2018, under Section 9 of the
I&BC, 2016 in which the National Company Law Tibunal,
Mumbai Bench by an order dated 16.4.2018 has declared a
45apl436.22.odt
moratorium thereby prohibiting the institution and
continuation of suits or proceedings against the corporate
debtor i.e. the applicant (pg 41) till the completion of the
corporate insolvency resolution process or until a resolution
plan under Section 31(1) is approved or an order of
liquidation of the corporate debtor under Section 33 of the
Code is passed. Learned counsel makes a categoric statement
upon instructions that no such order under Section 31(1) or
Section 33 of the Code has been passed as yet, nor the
Corporate Insolvency Resolution Process has been completed
till date and therefore the moratorium continues.
4] It is submitted that the cheque in question is
dated 13.4.2018. On 16.4.2018, the insolvency professional
was appointed on which day itself, the moratorium has been
issued. The respondent was throughout aware of this, as the
respondent has lodged his claim before the IP which is
reflected from the statement of claims received by the IP
(pg 46, Sr.No. 27), which was lodged by the respondent with
the IP on 30.4.2018 and as such the cheque ought not to have
been presented and the proceedings under Section 138 of the
N.I. Act ought not to have been filed on 22.6.2018. Placing
reliance upon Shri Mohanraj and ors vrs. Shah Brothers Ispat
Private Limited (2021) 6 SCC 258, it is contended that the
institution of proceedings under Section 138 of N.I. Act fall
45apl436.22.odt
within the expression "proceedings" as occurring in Section
14(1)(a) of the I&BC Code, 2016, as a result of which the
proceedings before the learned Magistrate, cannot be
continued on account of the moratorium. It is submitted that
the appointment of the IP and the granting of the moratorium
by the order dated 15.4.2018 was pointed out to the Courts
below, however, that has not been considered.
5] Issue notice for final disposal of the matter,
returnable on 13.6.2022.
6] Though the applicant no.1 would be the corporate
debtor and entitled to the benefit of the moratorium, however,
since the applicant Nos. 2 to 4 are its directors and who are
being sued in that capacity, there shall be an interim order in
terms of prayer clause (iv), till the returnable date.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:02.05.2022 18:48
