• Individual insolvency

Have borrowed lot of amount from private lenders (aprox 1.25 cr) and have handed over cheques to them as a security for business purpose.However,due to immense loss in business my financial condition is not as such that i can return the amount to them for atleast a year.Im willing to return the amount and do not want to flee from here as im trying to get my business back on track.Lenders not willing to give me time and want to go legal.How can i take time legally ? I understand individual insolvency has lot of restrictions but i suppose this is the best way to go right now as my firm is a proprietorship one.
Asked 6 years ago in Criminal Law
Religion: Hindu

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14 Answers

You have to negotiate with them. The law is very strict and hence take some time while you are again back on your feet.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

1) file petition for declaring you as insolvent under provisions of provincial insolvency act 

 

2) Insolvency petition can be filed at a district court having jurisdiction in which the debtor resides or carries on business.

 

3) 

Insolvency petitions are filed by the debtors or creditors only under sections 9 to 13 of provincial Insolvency Act to declare as insolvent

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

If you go for insolvency, you shall not have any property . You have to show your property does not cover the debt amount. In insolvency proceedings all you property will be put into liquidation process. No time will be given to you to repay. 

Better you can apply for rescheduling of loan payment alongwith a viable plan of rescheduling .It is upon sole discretion of court to approve the plan .

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

- Since, you have handed over cheques to them as a security , hence on the ground of that cheques , they will try to recover the amount from you after filing case under the section 138 of N.I Act.

- But , before filing the said case, they will issue legal notice for the same. 

- Further, if you will not refunded , then they will file a case against you for the recovery and punishment under the said Act. 

- However , you can get bail easily from the said offence from that court as per law, and the case will take at least 2 years of time to be disposed. 

- During the trial of the case, you can approach the court for a settlement , and court is bound to settle the dispute as per law. 

- Hence, you will get ample time to settle the disputes with the lenders. 

- To get insolvency is not easy task , and generally it is awarded to those individuals , who is not having any source of income .

- It means, if you are having any property etc in your name , then you will never get the order of insolvency.

- Hence, be tension free , and wait & watch for the cases of the lenders, as the police has not power to recover the amount from you on behalf of the lenders.

 

Good luck and dont forget to rating Positively. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

You can declare the same as per your choice

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Yes it is possible. Avail the legal remedy in the code otherwise file a writ petition and request for some time duration for settlement.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

The insolvency and bankruptcy code is only helping option available for you incase you run your bankruptcy case in that case Section 138 of Negotiable Instrument will not be effective until and unless there is a decision in bankruptcy code so so if you feel that you are not able to pay back the amount it is good to go for insolvency and the professional appointed for this purpose by the court will have to deal with your liabilities and you will also be saved from any threat from the lenders

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

Applying for insolvency mean all possibilities of revival lost. Event single asset will auction before declaring you insolvent.

1 year is not a long time and legal procedure will take more time.

So dont bother and concentrate on your revival. Dont absconded and face them than no criminal offence attract.

Sec 138 complaint will provide you lot time. Minimum 6o to 7o days will take file and than give get lot more time.

 

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

Bankruptcy is futile and sec 138 complaint mainatianble after declaring bank rupt.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

An individual can file an insolvency petition if he is unable to pay his debts and needs protection from creditors.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

1. IF the so called "private lenders" are not registered under the local state "Money Lenders Act", THEN they cannot give you any commercial grade loans /investments /funding's etc.... (to the exception of friendly interest free loans).

2. IF above is true THEN private lenders CANNOT get ANY success in 138 cheque bounce cases, for their illegal /black money lending business. There are several such HC /SC judgments related to this.

3. Legally speaking you are on sounding footings and there is no need for insolvency /bankruptcy proceedings.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

1. Let them file case under section 138 NI act.

2. In this case you will get time for atleast one year before stage of evidence then you can go for compromise with lender when you have enough funds to clear the dues. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

Bankruptcy is a legal status that usually lasts for a year and can be a way to clear debts you can't pay. When you're bankrupt, your non-essential assets (property and what you own) and excess income are used to pay off your creditors (people you owe money to). At the end of the bankruptcy, most debts are cancelled.

To prove insolvency to the IRS, you'll need to add up all your debts from any source, and then add up the value of all your assets. If you subtract your debts from the value of your assets and the number is negative, you're insolvent. You'll need to report this to the IRS on Form 982.

When a company goes into liquidation its assets are sold to repay creditors, the business closes down, and its name is removed from the register at Companies House. ... This is called a Members' Voluntary Liquidation (MVL). Insolvent liquidation occurs when a company cannot carry on for financial reasons.

However please note that the cheque bounce case will be tried under the provisions of criminal law despite the fact that you have filed an insolvency petition before any court or forum and the legal consequences as per provisions for cheque bounce case has to be faced.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

If you find pressure then you can opt for declaring bankrupt.

A court can deem a company or individual insolvent by issuing an insolvency order. A debtor can petition for an insolvency order as part of a request for personal bankruptcy protection. ... In that case, the court can issue an insolvency order, requiring the debtor to repay all or part of the debt.

The term Insolvency is the term to cover all types of debt problems while Bankruptcy is the term for an individual (whether in business or not) who has been declared bankrupt. Therefore bankruptcy is a type of insolvency.

Insolvency is the inability to pay debts when they are due. Fortunately, there are solutions for resolving insolvency, including borrowing money or increasing income so that you can pay off debt. You also could negotiate a debt payment or settlement plan with creditors.

Bankruptcy is usually a final alternative when other attempts to clear debt fail.

Insolvency only becomes an issue when a creditor seeks to collect and the debtor can’t pay what’s due. Failing to pay debts usually leads to debt collection efforts that force some kind of action. For example, if you own a house and don’t pay the mortgage, you’ll go into default that can soon lead to foreclosure

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

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