The accused company has compromised with applicant through District Court Mediation center, to repay the dues in six EMIs of bounced cheques amount, issued by accused but after paying 4 installments, the accused company has stopped paying the accused further instalments as per agreement, informing the accused on phone that since the NCLT has appointed "an interim resolution professional" (IRP) hence submit your claims accordingly.
it is pertinent to mention that Hon'ble NCLT has ordered insolvency against the accused on the plea of homebuyers who have paid the company to buy homes, whereas the applicant is not Home buyer of company but is an investor with company by way of Fixed deposits of company.
Moreover, accused has not informed/sought permission to terminate agreement from the court where case is pending.
Now how should the applicant proceed the case in court.
please advice...
The case falls under the Negotiable Instrument Act 1881, under section 138 which deals with the offence of dishonour of cheques for insufficiency or other causes related to non-payment. Under this section, the drawer of the cheque is criminally liable if the cheque is dishonoured and the payment is not made within 15 days from the receipt of the demand notice.
Once an IRP is appointed under the Insolvency and Bankruptcy Code (IBC), the control of the company management and finances, including bank accounts, vests with the IRP. The powers of the board of directors and partners stand suspended. This legally restricts the company’s ability to make payments directly during this moratorium period. As a result, any cheque dishonour occurring after the moratorium may not directly implicate the company’s directors or signatories for non-payment since they no longer control the company’s accounts. Also, If the failure to pay arises after the moratorium and IRP appointment, it is unlikely that the accused directors or the company can be held criminally liable for cheque dishonour under Section 138. Since you are an investor by way of fixed deposits and not a homebuyer, the insolvency proceedings initiated against the accused by homebuyers primarily protect homebuyers' claims. As an investor, you may not fall under the category protected or prioritized under the ongoing insolvency proceedings unless specifically admitted.
However, insolvency proceedings impose a moratorium on all recovery suits and claims outside the insolvency resolution process. When the moratorium of IBC kicks in after IRP appointment, the accused company cannot independently make payments under any prior agreement without IRP’s consent, and the cheque bounce arising thereafter may not hold directors or company liable criminally under Section 138, but for default or non-payments made after the IRP appointment, in such case liability is limited as per Sections 17 of IBC and relevant Supreme Court rulings.
You can submit the claim as a creditor to the IRP for recovery according to insolvency procedures. The pending case or mediation agreement cannot be unilaterally terminated by the accused company without the court's permission.
