Moratorium Under IBC Applies to All Proceedings
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In the insolvency process under the Insolvency and Bankruptcy Code (IBC) involves a Moratorium Under IBC section 14, a statutory stay that halts all legal proceedings against a corporate debtor upon the admission of a corporate insolvency resolution process (CIRP) application by the National Company Law Tribunal (NCLT). It provides a “breathing space” to continue as a going concern and to facilitate restructuring without the pressure of ongoing or new legal actions. This pause prevents the dissipation of assets, the enforcement of security interests, and the termination of essential contracts, thereby preserving the company’s value during the resolution process.
What is a Moratorium under IBC?
Section 14 of the IBC establishes a moratorium that prohibits the institution or continuation of suits, enforcement of security interest, transfer of assets, and recovery of property by owners or lessors against a corporate debtor upon the admission of an insolvency application by the NCLT. It remains in effect from the date of the NCLT’s order until the completion of the insolvency process, whether through approval of a resolution plan or a liquidation order. It has the key objective to prevent the depletion or dissipation of the corporate debtor’s assets, thereby preserving the value of the business as a going concern during the resolution process. Hence, moratorium is crucial for ensuring a collectively, orderly, and value-maximising resolution, shielding the debtor from pecuniary attacks and enabling the resolution professional to assess viable recovery plans.
Scope of Moratorium
The moratorium prohibits the institution or continuation of pending suits, arbitration proceedings, and the execution of any judgement, decree, or order against the debtors in any court, tribunal, or arbitration panel. It also bars the recovery of property by an owner or lessor from the corporate debtor, the enforcement of security interests, and foreclosure actions on the debtor’s assets. It also applies to all actions related to the recovery of debts, including those by financial and operational creditors, effectively staying all debt recovery proceedings, during the resolution process. This protection extends to the enforcement of security interests under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002, and the recovery of property occupied by the corporate debtor.
Judicial Interpretation on Moratorium’s Applicability
The moratorium extends to all proceedings against a corporate debtor once the insolvency petition is admitted. However, the Supreme Court in Innoventive Industries Ltd v. ICICI Bank clarified that the moratorium does not apply if a prior state law provides a statutory moratorium that is in force at the time of the insolvency application, as the two statutes may not be repugnant. The moratorium under section 14 of the IBC extends to all proceedings against the corporate debtor, including those initiated under section 138 of the Negotiable Instruments Act, as confirmed by the Supreme Court in P. Mohanraj v. Shah Brothers Ispat Pvt. Ltd., which held that such proceedings are barred during the moratorium period. The National Company Law Appellate Tribunal (NCLAT) observed that the moratorium prohibits the continuation of suits or proceedings against the corporate debtor, including SARFAESI actions and execution of judgements, but the scope of this bar is not absolute. The Delhi High Court in Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd., further clarified that the moratorium does not apply to proceedings that are for the benefit of the corporate debtor, such as the execution of an arbitral award in its favour, as such actions do not constitute a debt recovery action and are not essential for maximising the value of the debtor’s assets.
Proceedings Not Covered by Moratorium
According to section 14(3) and judicial precedents, there are certain proceedings that are not covered by moratorium:
- Criminal proceedings involving offences.
- Personal guarantor proceedings (subject to case law clarifications).
- Regulatory and tax-related actions in some circumstances.
Read more : What is Form G in IBC – Invitation for Expression of Interest
Impact of Moratorium on Stakeholders
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For Corporate Debtor: Moratorium provides a corporate debtor with a protected period to restructure its finances and operations without the pressure of ongoing legal actions or asset seizures, ensuring the preservation of its value as a going concern. This breathing space allows the debtor to focus on developing a viable resolution plan, crucial for long-term recovery and stakeholder value maximization.
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For Creditors: Creditors face a temporary suspension of their recovery rights, including the enforcement of security interests, and initiation of legal proceedings, which prevents individual actions that could disrupt the collective resolution process. This restriction ensures that all creditors are treated equitably and participate in the resolution plan, promoting fairness and preventing asset dissipation.
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For the Resolution Process: As this period ensures preservation of the debtor’s assets and equal treatment of all creditors by creating a stand-still period where no single creditor can gain an advantage, thereby facilitating a fair and orderly resolution process.
Exceptions and Controversies to moratorium under IBC
- The moratorium is not absolute and recognised exceptions, particularly for actions rooted in public policy, such as regulatory enforcement, criminal proceedings, and anti-money laundering measures.
- Courts have held that the moratorium does not bar actions by regulatory authorities, such as preventing money laundering or ensuring market integrity.
- Proceedings under criminal law, including those under the Negotiable Instruments Act, particularly section 138, are not automatically stayed during the moratorium if they are punitive in nature rather than debt recovery.
Practical Challenges in Implementation
- Jurisdictional conflicts arise when authorities like the Securities Exchange Board of India or tax departments continue proceedings against a corporate debtor despite the moratorium, leading to legal tussles over which authority prevails.
- Moratorium may not be promptly communicated or enforced, allowing recovery actions under SARFAESI or court decrees to proceed inadvertently or deliberately during this period.
- Debtors may exploit the mortality period by filing frivolous applications and not pursuing them, thereby delaying legitimate claims.
Conclusion
Moratorium is a cornerstone of CIRP under IBC , serving as a critical mechanism to facilitate the insolvency resolution process by providing a protective shield for the corporate debtor and ensuring the preservation of its assets. Courts have expanded its scope to include the stay of proceedings under the Negotiational Instruments Act, and have clarified that it prohibits the continuation of SARFAESI proceedings and execution of judgements, thereby reinforcing the standstill period. Balancing creditor rights and debtor protection remains key, as the moratorium aims to prevent the dissipation of assets while enabling the corporate debtor to continue operations as a going concern, though challenges like uncertainty in scope and potential delays persist.
FAQs
Q1. What is the duration of the moratorium under IBC?
The moratorium lasts for a maximum of 180 days from the date of admission of the insolvency application, which can be extended by up to 90 days only once.
Q2. Does moratorium apply to criminal proceedings?
No, moratorium does not apply to criminal proceedings.
Q3. Can secured creditors enforce their security during moratorium?
Secured creditors cannot enforce their security interest during the moratorium period, as it is prohibited under section 14(1)(c) of the IBC.
Q4. How does moratorium impact cheque bounce cases under NI Act?
Proceedings under section 138 of the NI Act cannot be initiated or continued against the corporate debtor, but they can proceed against natural persons, such as directors or officers, who are personally liable under section 141 of the NI Act.
Q5. Are tax recovery actions by the government barred during moratorium?
Yes, tax recovery actions by the government are barred during the moratorium period under section 14 of the IBC.
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