VISHNOO MITTAL Vs. SHAKTI TRADING COMPANY

JUDGEMENT

(1.) A complaint bearing No. 15580/18 titled as Ms/ Shakti Trading Company versus M/s Xalta Food and Beverages Pvt. Ltd., and others, became cast, under Sec. 138 of the Negotiable Instruments Act, 1881, before the learned Magistrate concerned. After the learned Magistrate recorded the preliminary evidence, comprised in affidavit Ex. CH, along wherewith became appended Ex. C1 to Ex. C5, he made a summoning order, on 7/9/2018, upon the accused (supra). One of the accused, who has been summoned through the summoning order, namely, one Vishnu Mittal, has challenged the summoning order (supra), through his casting the instant petition before this Court.

(2.) Cheque bearing No. 31859 of 5/7/2018, carrying therein a sum of Rs. One lac, became dishonoured on 7/7/2018. Subsequently, the complainant sent a statutory notice on 6/8/2018, upon, the accused (supra), demanding the afore sum from them. The factum of issuance, and, receipt of afore statutory notice, by the accused concerned, is not disputed before this Court. Since the demand as made, upon the accused concerned, through the afore statutory notice remained unreddressed, thereupon the complainant instituted the complaint (supra), on 7/9/2018. As afore stated, after the learned Judicial Magistrate concerned, recorded the preliminary evidence, he issued summons upon each of the accused. The summons issued upon the petitioner herein, become challenged by him.

(3.) The learned counsel appearing for the petitioner, has with much vigour, contended before this Court, that since the occurrence of sendings, and, receipt of the statutory notice, happened on 6/8/2018, and, when prior thereto, as apparent on a reading of Annexure P-2, the National Company Law Tribunal, New Delhi Bench, in the petition drawn by the complainant, against the respondent-accused M/s Xalta Food and Beverages Pvt. Ltd., hence claiming therein, the relief of imposition of moratorium, in terms of Sec. 14 of the Insolvency and Bankruptcy Code (for short 'IBC Code'), upon the complainant, and, besides when, through an order made by the National Company Law Tribunal on 25/7/2018, rather the afore relief became granted to the complainant. Therefore, he further submits that also when the amount carried in the Negotiable Instrument concerned, is, encompassed with the domain of the afore made order. Consequently, he further contends, that the clout of the moratorium, imposed through the order (supra) also extends to proceedings drawn under the Negotiable Instruments Act, and, thereupon the summoning order, is made with the completest lack of profound legal wisdom, and, is liable to be quashed, and, set aside. He further submits, that since Sec. 14 of the IBC, provisions whereof stand extracted hereinafter, make it abundantly clear, that subject to exceptions contained in sub-Sec. 2 and 3, on the insolvency commencement date, the moratorium declared by the competent authority rather casting a prohibition against the institution of suits, or continuation of pending proceedings against the corporate debtor, including execution of any judgment, decree, and, order passed by the tribunal, or arbitration panel, or other authority. Therefore, since the order (supra), as made by the Company Law Tribunal, occurred on 25/7/2018, or hence was made prior to the issuance of the demand notice (supra), thereupons with statutory forbiddance(s) becoming encumbered upon the accused, qua the redemption of the afore amount. Consequently, the issuance of demand notice becomes vitiated, and, also the proceedings as became thereafter constituted before the Magistrate concerned, become vitiated.