Filing 138 after nclt
Pradeep Agarwal
(Querist) 20 June 2018
This query is : Resolved
A lender of my client has attempted a fraud on them. They had received a security cheque against a loan in 2014 but did not return it saying they had lost it. Maintaining good relations and rapport with my client they, took replacement cheques thereafter. In 2015 my client had closed the account towards this specific cheques. We did not inform the lender as we believed they were honorable and had genuinely lost the same. In 2017 the company from which the cheque was issued went into NCLT. Fearing loss of the loan, the lender found these cheques, entered a date just before the date of NCLT and deposited the cheques in Feb 2018.
The cheques were naturally returned and they claimed through trusted mediators that this is only to safeguard legal side and they will not proceed further.
My client doubts lenders integrity now and wants to know recourse.
I understand that 138 can be filed even if NCLT is on but in all cases I find that the act of the bounce is before the NCLT proceeding. In this case, although fraud in larger picture, the instant action is deposit and bounce AFTER NCLT. Can 138 stand? If not, is there a precedent to this situation? I recall a power company having a similar case with a rental company but cant find the ruling. Please help.
AKSHANSH SINGHAL
(Expert) 22 June 2018
First of all, the party has to prove the liability for proceeding before NCLT. In case the Ld. NCLT accepts their claim, then all the proceedings shall go into abeyance and Insolvency professional shall be appointed.Did they obtain anything in writting while exchanging the cheques. What about the amount of cheques ? Is cheque amount same?
