TMI Blog2017 (12) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... unal was empowered to do so but now coming into force of the I & B Code and without any statutory provision to the effect we cannot extend the term of sanctioned scheme. Since the scheme has already been approved and it is also on record that till-date, the company could not turn its net worth into positive within the period of sanctioned scheme, therefore, it will be presumed that corporate applicant has violated the term of the sanctioned scheme. Thus, liquidation proceedings shall follow, in accordance with the provisions of I & B Code, 2016. - CP. (IB) NO. 406/KB/2017 - - - Dated:- 13-11-2017 - MR. V.P. SINGH AND MR. JINAN K. R., JJ. For The Applicant : Rajesh Bohra and Paras Kumar Jha, Advs. For The Respondent : P.D. Mukherjee, B.D. Ghosh and Sujit Sankar Koley, Adv. ORDER V.P. Singh, Member (J) Petitioner, under the Insolvency and Bankruptcy Code, 2016 (from now on referred to I B Code, 2016) has filed this application with a prayer to extend the scheme period further for five years, so the sanctioned scheme can be implemented, and net worth of the corporate applicant will become positive and during such period further direct to the Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition as Annexure-4. 6. It is further stated in the application that the scheme above will be ending on 31/3/2017 and the net worth of the corporate applicant is still negative which is the audited accounts for the financial year ended as on 31/3/2016. Copy of the verified statement as on 31/3/2016 is annexed with the application as Annexure-5. 7. Petitioner has further stated that the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, hereinafter referred to as SICA Repeal Act, 2003 under Sec. 4(b) as amended by notification dated 28/5/2016, all the BIFR matters have been abated except for the sanctioned scheme which has been saved in terms of Sec. 5 of Repeal Act and, as such, the approved scheme is continued to be binding. Petitioner has annexed a copy of the notification dated 28/5/2016 which is added as Annexure - 6. 8. Petitioner has further stated that vide notification dated 25/11/2016 has enforced the SICA Repeal Act, 2013 with effect from 1/12/2016 and accordingly BIFR has been dissolved. Copy of notification dated 25/11/2016 is Annexure - 7 attached to the petition. The relevant paragraph of the notification is given below: - In Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed scheme, which is given below for ready reference:- Copy of the said notification is provided below for ready reference: - Ministry of Corporate Affairs order New Delhi, the 24th May 2017 S.O. 1683(E) - Whereas, the Insolvency and Bankruptcy Code, 2016 (31 of 2016) (hereinafter referred to as the said Code) received the assent of the President on 28th May 2016 and was published in the Official Gazette on the same date; And, whereas, section 252 of the said Code amended the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004) in the manner specified in the Eighth Schedule to the said Code, and, whereas, the un-amended second proviso to clause (b) of section 4 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 provides that any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the repealed enactment i.e., the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) shall be deemed to be a scheme under implementation under section 424D of the Companies Act, 1956 (1 of 1956) and shall be dealt with in accordance with the provisions contained in Part VIA of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch modifications, as it may deem fit, or may by order in writing direct company administrator, to prepare afresh scheme providing for such measures as the company administrator may consider necessary. 15. It has also been amended by the I B Code, 2016 and the provision has been omitted. It is pertinent to mention that by SICA Repeal Act, 2003, all the proceedings before the BIFR abated and 180 days was provided to the corporate applicant for modifying the application before the National Company Law Tribunal. In this case, the applicant has filed an earlier application for extension of the period of the sanctioned scheme of the BIFR but it was earlier rejected but, there was no provision of I B Code whereby term of the sanctioned scheme of BIFR could have been extended. 16. It is pertinent to mention by issuing further notification by the Government dated 24/5/2017 that whereas the Companies Act, 1956 has been repealed and re- enacted as the Companies Act, 2013 (18 of 2013) which, inter alia, provides for scheme of revival and rehabilitation, sanction of scheme, scheme to be binding for the implementation of scheme under Secs. 261 to 264 of the Companies Act, 2013 and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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