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2019 (3) TMI 1236 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCHCorporate insolvency proceedings - Appropriate forum - recovery mechanism - “Regulatory Dues outstanding - whether the non-payment of listing fees is an ‘operational debt’ or a ‘regulatory due’? - scope of operational debt - HELD THAT:- Regulatory dues need not be included in the definition of Operational Debt. Because of this final observation as made in Para 1.20 of the Law Commission Report this Bench is of conscientious view that in spite of the fact that there was a listing agreement executed between BSE with the Corporate Debtor being issuing company, but totally governed and supervised by the regulations issued by SEBI dated 02.09.2015. As discussed supra, the regulatory authority i.e. SEBI is already empowered to execute not only its recovery mechanism, but also enshrined with power to punish the defaulter, hence, the insolvency proceedings shall not be gainful either to the Regulator or the Exchange. As a consequence, the debt in question can also be categorised under the head “Regulatory Dues”. The debt in question thus falls within the ambit of “Regulatory Dues”. Therefore, as a sequel, need not be treated as an operational debt. It is also worth to add in this order that sub-section 3 of section 14 w.r.e.f 06.06.2018 prescribing that the transaction notified in consultation with ‘Financial Sector Regulator’ be not covered under ‘Moratorium’ clauses - keeping in mind the Legislative intent that while applying the “moratorium” as per the provisions of section 14 IBC, vide sub section (3), the provisions of moratorium U/s 14 IBC shall not apply on “Financial sector Regulator”. Had it been not so, the regulator shall be in a disadvantageous position in respect of regulatory dues being treated at par with “Operational Debt” as prescribed under IBC. This view shall put the Financial Sector Regulator at an advantageous pedestal so as to protect the interest of a regulator i.e. SEBI, as defined U/s 3(18) of IBC. As a consequence, the Debtor Company shall not get any shield or protection under the excuse of moratorium in respect of recovery of regulatory dues by the Financial Sector Regulator/SEBI. The right forum to initiate recovery proceedings for non-payment of Listing Fees is not NCLT. In view of above, the petition is hereby ‘Dismissed’ with Liberty to the Petitioner to approach the appropriate forum and take legal steps for which he is entitled to.
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