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IBCInsolvency & Bankruptcy CodeWhether any debts related to security interest can be recovered during the Moratorium, IBC

June 9, 2019by GLC & Partners

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In the case of Canbank Factors Ltd. Vs. Dharmendra Kumar (Company Appeal (AT) (Insolvency) No. 789 of 2018) the NCLAT held any kind of debt cannot be recovered during the moratorium period.

On 28th February 2018 Corporate Insolvency Resolution Process (CIRP) was initiated against M/s IAP Company Pvt. Ltd. and moratorium was passed. However, it was noticed by the Interim Resolution Professional that ‘CanBank’ by exercising lien on the accounts of the Corporate Debtor were recovering money in spite of existence of the moratorium period.

Even though the Resolution Professional asked Canbank not to recover any money during the moratorium they still recovered and retained some money. The NCLT ( New Delhi) directed CanBank to pay back the money which was recovered and held that  none of the creditors can enforce their security interest of their claims in relation to the property of the ‘Corporate Debtor’ including property of every description including receivables during the period of ‘Moratorium’.[1]

In this case, the Corporate Debtor entered into a factoring agreement and due to non-payment, the account of the Corporate Debtor was declared as a Non-Performing Asset (NPA). The Corporate Debtor then informed M/s National Informatics Centre Services Inc. that the Financial Creditor alone will receive payments with respect to invoices factored with them.[2]

It was submitted by the Appellant that they have a statutory right for recovering of the money and that they also had an absolute right as the Corporate Debtor executed the Power of Attorney in favour of the Financial Creditor for recovery of dues from its customers. They also stated that as the lien was imposed before the Insolvency proceedings were started and the demand was made before moratorium period due to this Section 14(1)(c) of the Insolvency and Bankruptcy Code, 2016 would not apply in this case.

They submitted ledger accounts stating that no amount has been recovered after the moratorium period started, but no corresponding bank records were provided, due to which this couldn’t  be relied upon.

The NCLAT held that no type of recovery can be made after the commencement of the moratorium period and the appeal was dismissed.

[1] (Company Appeal (AT) (Insolvency) No. 789 of 2018)

[2] (Company Appeal (AT) (Insolvency) No. 789 of 2018)