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TMI Blog2019 (2) TMI 1668X X X X Extracts X X X X X X X X Extracts X X X X ..... and Date of incorporation is 04.05.1995. 3. Further under the Head "Particulars of Financial/Operational Debt" the total amount of Debt is stated as Rs. 2,27,07,243/- and the amount in default is stated as Rs. 2,19,96,247/-. 4. The Petitioner filed this application owing to its inability to meet its claims by various Operational Creditors given hereunder: Sr. No. Name of the Operational Creditor Total amount of Debt (Rs. ) Amount in Default (Rs. ) 1. Securities & exchange Board of India (SEBI) 2,18,57,301/- 2,18,57,301/- 2. Bombay Stock Exchange Limited (BSE) 1,38,946/- 1,38,946/- 3. Ms. Sonal H Dalal 6,05,000/- Nil 4. TD Shah & Co. 47,995/- Nil 5. Rajiv R Trivedi 58,001/- Nil Total: 2,27,07,243/- 2,19,96,247/- 5. The Corporate Applicant has annexed Notice of Demand dated 10.02.2016 sent by SEBI to the Petitioner demanding a sum of Rs. 8,72,92,655/- along with interest @15% p.a. Recovery Notice dated 27.10.2017 sent by Enforcement Department of SEBI has also been produced on record, showing the balance dues amounting to Rs. 2,18,57,301/- payable as on 31.10.2017. The dues payable towards BSE liability are shown in the account summary dated 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but in the nature of 'Regulatory Dues' and not operational dues. A view on this question has already been expressed by this Bench in the case of BSE V. Asahi Infrastructure & Projects Limited Order dated 11.02.2019 in CP No. 1718/IBC/NCLT/MB/MAH/2017 wherein the findings were as under: "18. To sum up, this intricate question is to be answered in a systematic manner, albeit, in the light of the above discussion, therefore, for that reason the first step is to examine the SEBI Regulations, 2015 wherein vide Regulation 14 it is prescribed that the listed entity (Asahi Infrastructure & Projects Ltd., in this case Corporate Debtor) shall pay all such fees or charges as applicable to the Recognised Stock Exchanges (BSE in this case Operational Creditor), in the manner specified by the Board (SEBI) or the recognised Stock Exchange. The next important step is as specified in Circular No. CIR/CFD/CMD/12/2015 dated 30.11.2015 which says that the SEBI had all authority and power to recover the dues for/from the Stock Exchange (BSE). Relevant paragraph s are reproduced below: SEBI Circular No. CIR/CFD/CMD/12/2015 Dated 30.11.2015 "Sub: Non-compliance with certain provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed and regularised by SEBI. In this case, this procedure was duly followed, therefore in accordance to the said regulations a listing agreement was executed on 30.11.1993, between issuing company i.e. Asahi Infrastructure & Projects Ltd., on one hand, and on the other hand, Stock Exchange of Bombay (BSE). This inter-se agreement is subject to control and supervision of SEBI. The next step for due consideration is the Report of the Insolvency Law Committee dated 26.03.2018 where an observation is made that the Regulators i.e. SEBI has wide ranging powers to enforce their orders and recover dues. The Law Commission has given an example of Section 24 (2) of SEBI Act, 1992 that if any person fails to pay penalty imposed or fails to comply with any of directions shall be punishable with imprisonment etc. The Hon'ble Law Commission has also concluded in Para 1.20 that after due deliberation unanimously agreed 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 betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency Law Committee: "1.16 It was suggested to the Committee that the definition of 'operational debt' under the Code must be widened to include dues payable to regulators. This would ensure that such dues are granted the protection discussed in points (i) and (ii) above. 1.17 With respect to point (i) discussed above, the Committee noted that regulatory dues were intentionally not included in the definition of operational debt. It was discussed that if any claim or obligation arises pursuant to non-payment by a corporate debtor in lieu of any goods or services provided by a regulatory body, it may be interpreted as 'operational debt' on a case to case basis. For example, the Committee noted that one of the leading stock exchanges had filed applications for initiation of CIRP against certain companies for non-payment of annual listing fees. The Committee also noted that, regulators generally have wide ranging powers to enforce their orders and recover dues. For example, section 24(2) of the SEBI Act, 1992 states as follows: "If any person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any of his directions or orders, he shall be puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng precedent for those defaulters who have not paid the government dues or regulatory dues but by filing insolvency proceedings seeking a shelter against recovery on the ground of commencement of Moratorium in case of admission of insolvency petition. Ultimately, if there is no resolution plan, the Company will be thrown into liquidation. As there are no Financial/operational/secured/unsecured creditors of this company, the only entity which will receive the proceeds of liquidation is SEBI and BSE, and that too will not be cleared fully as the Company does not even have enough Assets to pay off its debts even after liquidation. On the other hand, SEBI has enough power to realize the outstanding debt by direct recovery from the revenue operations of the debtor. 10. Hence, in view of above, the Petition is defective as the Petitioner does not owe Operational/Financial dues to SEBI or BSE or any other entity. As far as the regulatory dues of SEBI and BSE are concerned, SEBI has its own separate mechanism to recover the same. No fruitful purpose shall be served to declare the Corporate Debtor as insolvent having business operations or resources of sufficient income through which the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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