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2019 (12) TMI 1538 - BOMBAY HIGH COURTConstitutional validity of provisions of Insolvency and Bankruptcy Code, 2016 and more particularly Section 3(8), Section 3(23) and Section 238 and also Sections 7, 8 & 9 - Government companies - HELD THAT: We would not wish to express any opinion on the maintainability of all the proceedings before the NCLT. We do not think that once the petition was pending in this Court, can we prevent M/s.Hindustan Antibiotics Ltd. to proceed with it only because some orders have been passed by the NCLT in the company petition. These orders also have not gained finality on account of the reference to a third member. Further, on the core issue about the applicability of the Code to M/s.Hindustan Antibiotics Ltd., the members of the National Company Law Tribunal are divided in their opinion. There is now a reference made to the third member. We do not think that the National Company Law Tribunal should precipitate the matter when a constitutional challenge is pending before this Court. None can dispute that it is only this Court which can deal with the challenge raised to the constitutional validity of the provisions of the IBC. We do not think that the NCLT would be well advised in proceeding with the matter. We think that the petitioner has made out a strong prima facie case for grant of interim relief and balance of convenience is also in its favour. Issue notice to the learned Attorney General for India on the point as to whether the provisions of IBC, as alleged, are ultra vires Article 14 and other relevant Articles of the Constitution of India - Notice be also issued to other respondents, returnable on 22.1.2020.
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