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TMI Blog2019 (10) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ms. Srideepa Bhattacharya, Aditya Marwah, Ms. Neha Shivhare, Ms. Sylona Mohapatra, Zoheb Hossain, Advs. and Sanjay Shorey, Director ORDER 1. The questions arise for consideration in this appeal are: (i) Whether the 'Directorate of Enforcement' has jurisdiction to attach the property of the 'Corporate Debtor' or part thereof which is undergoing 'corporate insolvency resolution process'; and (ii) Whether the 'Directorate of Enforcement' comes within the meaning of 'Operational Creditor' in terms of Section 5 (20) and (21) of the 'Insolvency and Bankruptcy Code, 2016' for the purpose of money claim (civil matter), which may be generated out of the attached property/part thereof of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel appearing on behalf of the Appellant (JSW Steel Limited). 6. In the reply-affidavit filed by Union of India through Ministry of Corporate Affairs in consultation with Department of Financial Services and the Banks, the following statement has been made in support of stand taken by Union of India: "(3) That pursuant to the captioned notice, the Ministry had called for meeting of the officials of Department of Financial Services and the Banks who were members of the Committee of Creditors on October 3rd, 2019 to ascertain their views and formalize the response of this Ministry, in view of rippling effects it would have in this case as well as other cases as well. In the meeting, it was unanimously recognized that the rights of Secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dependent of the Corporate Insolvency Resolution Process ("CIR Process") under the IBC and both can run simultaneously and independent of each other. It is further submitted that the erstwhile management of a company would be held responsible for the crimes, if any, committed under their regime and the new management taking over the company after going through the IBC process cannot be held responsible for the acts of omission and commission of the previous management. In other words, no criminal liability can be fixed on the successful Resolution Applicant or its officials. (6) In so far as the corporate debtor or its assets are concerned, after the completion of the CIR Process, i.e. a statutory process under the IBC, there cannot be any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Otherwise too, the money realised by way of resolution plan is invariably recovered by the banks and public financial institutions and other creditors who have lent money to the erstwhile promoters to recover their dues which they have lent to the erstwhile management for creation of moveable or immoveable assets of the corporate debtor in question and therefore, to attach such an asset in the hands of new promoters or resolution applicant would only negate the very purpose of IBC and eventually destroy the value of assets. (8) In light of the above, it is respectfully submitted that the ED while conducting investigation under PMLA is free to deal with or attach the personal assets of the erstwhile promoters and other accused persons, acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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