Issue 24 – Insights 2
Insights – No Limited Liability = R.I.P Entrepreneurship
The latest
In July, 2017 a bankruptcy court ruled that a promoter cannot escape liquidation of her personal assets by simply filing for bankruptcy. This ruling has opened up a Pandora’s Box for the professionals and entrepreneurs alike.
Facts of the case
In the said case, Schweitzer Systemtek India Private Limited voluntarily filed the bankruptcy petition after it defaulted on a loan of Rs. 4.5 crores given by Dhanlaxmi Bank.
The loan had been taken by Schweitzer Systemtek India Private Limited from Dhanlaxmi Bank and the Promoter had pledged her personal properties. The Bank had then assigned the loan and the security to Asset Reconstruction Company – Phoenix ARC. The petition in NCLT Mumbai was filed by Phoenix ARC as a creditor against Schweitzer Systemtek India (Corporate Debtor).
Contention of Parties
Schweitzer India (Corporate debtor) contended that once the application was “admitted” u/s 10 of the IBC, 2016, then, the moratorium period commenced wherein no action could be taken against the corporate debtor. Till the insolvency resolution process is completed, no assets or properties could be taken possession of or sold by the creditor(s).
On the other hand, the Phoenix ARC (Creditor) contended that Schweitzer India’s action to prohibit the creditor from taking over possession of assets was with malafide intention suggesting possible misuse of the moratorium period provided under the insolvency resolution process.
MORATORIUM UNDER IBC, 2016
A 180 – 270 day period from the date of insolvency commencement. During this, there is a prohibition on instituting any legal suit or proceeding or sale or disposal of assets or lien on the assets of the corporate debtor.