Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2022 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 626 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHILevy of penalty u/s 128 (6) of the Companies Act, 2013 - the Adjudicating Authority inferred that the suspended board of directors of corporate debtor did not maintain the records of the Corporate Debtor as mandated under the provisions of Section 128(5) of the Companies Act, 2013 - HELD THAT:- It is evident from the Impugned Order that the ex-Directors of the Corporate Debtor viz. Mr. Ashish Chaturvedi and Mr. Sanjay Kapoor were provided multiple opportunities to submit their reply when the matter was listed before the Adjudicating Authority on 25.2.2020, 30.9.2020, 19.10.2020 and 2.11.2020. But they neither filed any reply nor provided any record of the Corporate Debtor. In such a situation, the Adjudicating Authority inferred that the suspended board of directors of corporate debtor did not maintain the records of the Corporate Debtor as mandated under the provisions of Section 128(5) of the Companies Act, 2013, and after invoking the provision under Section 128 (6) of the Companies Act, 2013, a penalty of ₹ 5 lakhs each was imposed on both the Appellants. The resolution professional could not carry out his duties as required under the IBC for insolvency resolution of the corporate debtor and when the corporate debtor was sent into liquidation, the liquidator was unable to carry out the liquidation process in accordance with the provisions of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. Moreover, when the Adjudicating Authority provided multiple opportunities to the Appellants to clarify their position by filing their replies in IA 1253/2020 the Appellants were totally remiss in doing so. With regard to the argument of the Learned Counsel of the Appellants that the Adjudicating Authority has imposed the penalty on the two ex-directors by invoking provisions of the Companies Act, 2013, and thus passed the Impugned Order by travelling beyond their jurisdiction, we are of the view that since the IA No. 1253/2020 was filed under the provisions of IBC, it would have served the requirement of law if any order regarding the penalty was imposed under the provisions of IBC - it would have served the cause of natural justice if the Appellants were given an opportunity to be heard before imposition of any penalty. Chapter VII of the IBC which lays down “Offences and Penalties” under which officers of the Corporate Debtor can be penalized and/or punished with imprisonment is relevant in this regard. It is directed that the case be remanded to the Adjudicating Authority for taking a decision under the provisions of IBC after giving an opportunity to the Appellants to present their case - petition allowed by way of remand.
|