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2019 (7) TMI 686 - AT - Insolvency and BankruptcyWinding up of Company - Applicability of provisions of the I&B Code - consent of the Central Government to start the ‘Corporate Insolvency Resolution Process’ of the ‘Corporate Debtor’ in view of Section 16G(1)(c) of the ‘Tea Act, 1953’ - case of the Appellant is that out of these 7 gardens, the ‘Operational Creditor’ supplied from the garden ‘Birpara Tea Estate’ and therefore it is not in dispute that the supplies made to the ‘Corporate Debtor’ is under the management and control of the Tea Board. HELD THAT:- From plain reading of Section 16(1)(c) of the Tea Act it is clear that where the management or a tea undertaking or tea unit owned by the company has been taken over by the Tea Board “no proceeding for the winding up of such company shall lie in any court except with the consent of the Central Government" - If the interpretation as given by the Respondent is accepted then it is to be held that Section 16G(1)(c) of the Tea Act, 1953 is not conflicting with Section 9 of the I&B Code and thereby Section 9 will have an over-riding effect on Section 16G(1)(c) of the Tea Act, 1953. From the finding of the Hon’ble Supreme Court decision in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] it is clear that the ‘Corporate Insolvency Resolution Process’ while allows a resolution process but liquidation is not desirable under the I&B Code. Section 16G(1)(c) relates to winding up and on the other hand Section 9 of the I&B Code application filed is not a proceeding for winding up but for initiation of ‘Corporate Insolvency Resolution Process’ to ensure revival and continuation of the ‘Corporate Debtor’ by protecting the ‘Corporate Debtor’ from its own management and from corporate debt by liquidation. Section 9 of Insolvency and Bankruptcy Code occupies different field than Section 16G(1) of the Tea Act, 1953. For filing an application under Section 9 against Tea Company under the management of the different board, no permission of the Central Government is required in terms of Section 16G(1) of the Tea Act, 1953 - the impugned order is set aside and case remitted back to the Adjudicating Authority, Kolkata Bench, Kolkata to pass appropriate order under Section 9 of the I&B Code after notice and hearing the parties. Appeal allowed by way of remand.
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