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2021 (2) TMI 753 - HC - Companies LawRecovery action by secured creditors and financial institutions, who extended financial help to the original borrowers / guarantors - action under section 29 of the State Financial Corporation Act, 1951 - HELD THAT:- A part of the sale consideration was converted into loan and the said purchaser – M/s. Shree Industries Ltd. also defaulted and the said purchaser / borrower approached the BIFR / AAIFR under the provisions of the Sick Industrial Companies (Special Provisions) Repeal Act, 1985, as it then existed and while the proceedings were pending before the BIFR / AAIFR, a new law in the form of the Insolvency and Bankruptcy Code, 2016 came to be enacted by the Parliament and the proceedings regarding insolvency Resolution / Recovery from the defaulting corporate debtor on its winding-up were to be taken up by the National Company Law Tribunal (NCLT), which was constituted under the provisions of Section 408 of the Companies Act, 2013. Section 408 of the Companies Act, 2013 stipulates that the NCLT shall exercise such powers and functions as may be conferred on it by the provisions of the Companies Act, 2013 or any other law for the time being in force. Under the provisions of IBC, 2016, the NCLT is designated and defined as the Adjudicating Authority and thus, has all the relevant powers to deal with these issues - In view of Section 408 of the Companies Act, 2013 stipulates that the NCLT shall exercise such powers and functions as may be conferred on it by the provisions of the Companies Act, 2013 or any other law for the time being in force. Under the provisions of IBC, 2016, the NCLT is designated and defined as the Adjudicating Authority and thus, has all the relevant powers to deal with these issues. It appears that the Company, whose reference was pending before the BIFR / AAIFR, could make a reference to the NCLT under the provisions of the IBC, 2016, within 180 days from the date of commencement of the IBC, 2016, which is 28.05.2016 - If the said Company, whose reference is pending before the BIFR / AAIFR, does not make such reference to the NCLT, then what happens to the pending proceedings seems to have not been specified in the provisions of the IBC, 2016 or other relevant laws. Whether the abatement will become final or such pending proceedings could be referred to the NCLT, by any of the parties or by the Court, is a question for our consideration. As prayed by Learned Counsel, time is granted to them to make submissions on the following points :- (i) Whether any proceedings, in any manner, in respect of the Assets of the Company in question – M/s. Ganpati Pulp and Paper Mills Ltd or M/s. Shree Industries Ltd., are pending before the NCLT or not and if the proceedings are pending, the details and status of the same may be placed before the Court? (ii) If no such proceedings are pending before the NCLT as of now, whether this Court can refer the entire matter to the NCLT and direct it to decide all the questions of law involved in the present case and the questions of facts, including the respective rights of the secured creditors, leaving it open to the parties to raise their respective claims / counter-claims and defences before the NCLT at this stage or not? Put up on 09.02.2021 on the top of the Board, as prayed.
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