TMI Blog2021 (4) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... of Adjudicating Authority under Section 60(5) of IBC - HELD THAT:- Under Section 25 of IBC, the Resolution Professional is inter alia duty bound to represent and act on behalf of the Corporate Debtor with third parties, to exercise rights for the benefit of the Corporate Debtor in judicial, quasi-judicial and arbitration proceedings. The Judgment of Hon ble Supreme Court in M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD. VERSUS STATE OF KARNATAKA OTHERS [ 2019 (12) TMI 188 - SUPREME COURT] has observed that for such actions the Resolution Professional cannot move the NCLT/Adjudicating Authority under Section 60 (5). There cannot be any shortcut on such counts. Under Section 18(1) (f) the IRP when it takes control and custody of any asset over which Corporate Debtor has ownership rights as recorded in the balance-sheet of the Corporate Debtor, it can include asset regarding which there may be a dispute pending regarding ownership in a court of law. Such issue of Ownership only a Civil Court can decide. The Government has amended Section 11 of IBC by adding additional explanation as per Insolvency and Bankruptcy Code Amendment Act, 2020 published on 13.03.2020. Section 11 of IB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d properties of Corporate Debtor and also to carry on business of the Corporate Debtor for its beneficial liquidation as may be considered necessary by the Liquidator. Regulations to be complied - HELD THAT:- Once CIRP starts, there may be a contingency of the admission order getting set aside in Appeal. There may be another contingency where under Section 12A of IBC withdrawal of the Application admitted under Section 7, 9 or 10 takes place. Apart from these two contingencies, the CIRP is bound to end into either in Resolution Plan getting accepted or the Corporate Debtor going into liquidation. These two contingencies are taken care of by Section 32 A which has been recently added in IBC. If the first two contingencies happen, the normal laws would naturally get attracted as there would be a reversal to management going back to earlier hands. However, when CIRP is pending and progressing with target of Resolution, whether the attachment or seizure can be made or continued of the properties of Corporate Debtor is required to be considered. Active Attachments, seizure etc. - HELD THAT:- If the aims and objects of IBC are to be achieved, and maximisation of value is materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abhijeet Sinha, Mr. Rajendra Beniwal, Mr. Kumar Sumit And Mr. Chirag Gupta, Advocates for R-1 and R-3. Mr. Arijit Mazumdar and Mr. Shambo Nandy, Advocates for R-2. Mr. Manoj Kumar Agarwal, RP (Party in person) JUDGEMENT A.I.S. Cheema, J. COMPANY APPEAL (AT) (INSOLVENCY) No.575/2019 This appeal has been filed by the Directorate of Enforcement being aggrieved by impugned order dated 12.02.2019 passed by the Adjudicating Authority, National Company Law Tribunal, Mumbai Bench, Mumbai in MA No.1280 of 2018 in the matter of Sterling SEZ Infrastructure Ltd. (Corporate Debtor) through Resolution Professional Vs Deputy Director, Directorate of Enforcement, Headquarters Investigation Unit, New Delhi in Company Petition IB No.405/IB/2018. The Miscellaneous Application was filed by the Resolution Professional of the Corporate Debtor and after hearing the parties the Adjudicating Authority, NCLT, Mumbai by the impugned order directed that the attachment order dated 29.05.2018 and the Corrigendum dated 14.6.2018 issued by the deputy Director, Directorate of Enforcement, under the provisions of Prevention of Money Laundering Act, 2002 (PMLA in short) which has been confirmed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany Appeal (AT)(Insolvency) no.575/2019. The Appeal 4. The appellant claims that the impugned order dated 12.02.2019 needs to be set aside, as the properties were validly attached under the provisions of PMLA. It is stated that in another proceeding before another Bench of the same Tribunal in MA No.1243/2018 in CP(IB) No.490/MBH/2018 in the matter of Sterling Biotech Ltd Vs Andhra Bank where quashing of attachment was sought, the concerned Bench did not interfere and observed that the appeal could be filed only under the provisions of PMLA. It is claimed that there is no moratorium applicable in criminal proceedings. 5. The appellant claims and it is argued that CBI BS FC New Delhi registered FIR No. RCBD1/2017/E/0007 on 25.10.2017 under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 120B read with section 420, 467,468 and 471 of the Indian Penal Code (IPC in short) against M/s Sterling Biotech Ltd and its promoters/directors for hatching a criminal conspiracy with the intention of cheating Andhra Bank and other public sector Banks. On the basis of the said FIR, the Directorate of Enforcement recorded ECIR/HQ/17/2017 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60(5) of IBC. It is also argued that Section 32A of IBC which has been introduced by the Amendment Act is not applicable as the same bars the attachment only after the Resolution Plan has been approved subject to fulfilment of conditions as mentioned in the concerned Section. 9. The appellant has further submitted that PMLA is a special legislation which is aimed at dealing with the offence of money laundering and, therefore, has primacy over the IBC in proceedings relating to money laundering. The mere fact that the assets of the Corporate Debtor are subject to resolution proceedings under IBC, the same cannot be an escape route for any action under the PMLA, as it would lead to abuse of the process of law by money launderers. It is also argued that IBC cannot be an amnesty route for accused under the PMLA, and entire confiscation regime under PMLA and its objects will be defeated if the Adjudicating Authority, NCLT starts interfering with the attachment orders without the authority of law. It is argued that PMLA is a complete Code and has provisions of effective remedial measures available to affected parties. If any person is aggrieved there are remedial measures available u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l refer to the relevant judgements subsequently in this judgement. Broad Facts 14. Before discussing the averments made with regard to the law, it would be appropriate to make brief reference to the broad facts. The Appellant has not given the particulars and reply of Respondent No. 3- the Corporate Debtor to Resolution Professional (Diary No. 13525) in Paragraphs 29, 30, 31, 42 and 43 reads as under: 29. The Respondent No. 3 company was incorporated in the year 2006 as Special Purpose Company for implementing the SEZ. The SEZ has been notified vide Notification dated 9th January, 2008. The Respondent No. 3 Company is setting up one of the largest multi product Special Economic Zones near Jambusar in Bharuch District, Gujarat. The attached assets were acquired in the year 2006 to 2008. 30. In the year 2008-2012, the Respondent No. 3 Company availed various financial facilities for consortium of banks in the form of Term Loan and other financial facilities and charge were created over the immovable assets in favour of the Banks against the loans obtained by it by depositing of title deeds vide the Memorandum of Deposit of Title Deeds, which was registered with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered by CBI dated 25.10.2017 is against M/s. Sterling Biotech Ltd. (SBL in short) Corporate Debtor is Sterling SEZ and Infrastructure Ltd. in Appeal No. 575 of 2019 (and Sterling International Enterprise Ltd. is Corporate Debtor in Appeal No. 576 of 2019). The SBL is stated to be Flagship Company with other group Companies which include Corporate Debtors. The alleged offence is stated to have been committed 2008 onward . According to the Appellant, the FIR was registered on 25.10.2017. Pursuant to the said FIR, Appellant recorded ECIR No. ECIR/HQ/17/2017 ON 27.10.2017(Annexure D) and investigation was started. In this ECIR (Annexure D Page 80) M/s. SBL is arrayed as suspected accused along with Directors and others. Competent Authority of PMLA issued Provisional Attachment Order (Annexure E) on 29.05.2018 and Corrigendum dated 14.06.2018 (Annexure E F) Page 86 under Section 5 (1) of PMLA. It is stated that inter alia properties of Corporate Debtors in present matter were also attached. 16. The Application under Section 7 of IBC came to be admitted on 16.07.2018. It appears that the Resolution Professional approached the Appellant for release of the Provisional Attachment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority that PMLA was special Act. That, Section 71 of PMLA gives overriding effect and objects of PMLA and IBC were different and that moratorium could not be applied to criminal case initiated. Submissions of Amicus-Curiae before Adjudicating Authority, and Reasons 18. The Adjudicating Authority took assistance from amicus-curiae Mr. Mayur R.S. Khandeparkar, Advocate and referred to the arguments raised by the amicus curiae which were as under: 5(b) .. In the present MA, the Resolution Professional have sought release of attachments as well as handing over possession of assets, there is nothing on record to indicate that the possession of these assets in question have been taken over by the ED under PMLA. In absence of such material, it is obligation/duty of the Resolution Professional to take control and custody of assets of the Corporate Debtor in terms of Section 18(1)(f) of the Code. However, it is required to be noted that the provisions of PMLA permit possession to be taken by the ED under Section 8 (4) of the PMLA only after confirmation of the provisional order of attachment under sub-section 3 thereof. There is nothing on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by NCLT, Ahmedabad to contend non-applicability of moratorium on the proceedings before Adjudicating Authority is wholly misplaced. Rather the said judgment reinforces the correct position. 44. In view of aforesaid facts and circumstances and for reasons referred above, we set aside the Impugned Order dated 20.12.2017 and the Provisional Attachment Order dated 29.06.2017. The mortgaged properties attached under the PAO 05/2017, so far as, properties concern in this appeal are released from attachment forth with. . 8. This Bench has given serious consideration to the submissions made by the applicant, respondent and amicus curiae and gone through the pleadings and the judgments and is of the considered view that:- a. The purpose and object of IBC is for resolution of the Corporate Debtor by maximizing the value that can be received by the Creditors and stake holders. The IBC provides for timelines within which the resolution has to be arrived at. The PMLA s object is also to recover the property from wrong doers and compensate the affected parties by confiscation and sale of the assets of the wrong doer apart from imposing punishmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may take a considerable time and the assets wer to be locked in the proceedings. Considering the economic factors associated with the case and the object of both legislations, it is advisable to take a route where assets can be utilized in a speedy manner rather waiting and lose the value of assets over a period of time. 9. In view of the above discussion the attachment order dated 29.05.2018 and the Corrigendum dated 14.06.2018 issued by Respondent and as confirmed Adjudicating Authority under PMLA Court is a nullity and nonest in law in view of Sections 14 (1) (a) 63 and 238 of IBC and the Resolution Professional can proceed to take charge of the properties and deal with them under IBC as if there is no attachment order. The concerned sub-registrars are directed to give effect to this order and remove their notings of attachment, if any, in their file in respect of properties belonging to the Corporate Debtor. It is needless to mention that the attachments in respect of the properties of the Corporate Debtor only are covered in this order. 10. Consequently, the sub-registrar at Jambusar is directed to register and hand over the two Original lease deeds entered into betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minerals (Development and Regulation) Act, 1957. As there was no response, IRP filed a Writ Petition WP No. 23075 of 2018 before the High Court of Karnataka seeking relief. Government of Karnataka rejected the proposal of deemed extension on 26.09.2018. In view of such order, the IRP withdrew Writ Petition No. 23075 of 2018 with liberty to file fresh Writ Petition but instead filed Miscellaneous Application before the NCLT, Chennai which passed ex-parte orders on 11th December, 2018 setting aside order of Government of Karnataka treating it in violation of moratorium under Section 14 of IBC. Adjudicating Authority directed0020Government of Karnataka to execute Supplement Lease Deeds. The Government filed Writ Petition No. 5002 OF 2019 before the High Court of Karnataka. Considering factor of ex-parte Order, the Hon ble High Court remanded back the matter to NCLT, Chennai. The matter in M.A. No. 632 of 2018 was again heard by NCLT which passed order dated 3rd May, 2019 allowing the M.A. and rejected the defence of the Government of Karnataka. The Government was directed to execute Supplement Lease Deeds. The Government challenged this in the High Court again in Writ Petition No. 410 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961. Therefore the jurisdiction of the NCLT delineated in Section 60(5) cannot be stretched so far as to bring absurd results. (It will be a different matter, if proceedings under statutes like Income Tax Act had attained finality, fastening a liability upon the corporate debtor, since, in such cases, the dues payable to the Government would come within the meaning of the expression operational debt under Section 5(21), making the Government an operational creditor in terms of Section 5(20). The moment the dues to the Government are crystallised and what remains is only payment, the claim of the Government will have to be adjudicated and paid only in a manner prescribed in the resolution plan as approved by the Adjudicating Authority, namely the NCLT.) 38. It was argued by all the learned Senior Counsel on the side of the appellants that an Interim Resolution Professional is duty bound under Section 20(1) to preserve the value of the property of the Corporate Debtor and that the word property is interpreted in Section 3(27) to include even actionable claims as well as every description of interest, present or future or vested or contingent interest arising out of or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 25 in contrast to the language employed in Section 20. Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word assets , while Section 20(1) uses the word property together with the word value . Sections 18 and 25 do not use the expression property . Another important aspect is that under Section 25 (2) (b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows: 25. Duties of resolution professional (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of subsection (1), the resolution professional shall undertake the following actions: (a) . (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion memorandum required to be issued by Resolution Professional shall contain details of all material litigation and an ongoing investigation or proceeding initiated by Government and statutory authorities; . 21. The Government has amended Section 11 of IBC by adding additional explanation as per Insolvency and Bankruptcy Code Amendment Act, 2020 published on 13.03.2020. Section 11 of IBC relates to persons who are not entitled to make application. Explanation 2 was added to clarify that nothing in the Section shall prevent a Corporate Debtor referred to in clause (a) to (d) of the Section from initiating Corporate Insolvency Resolution Process against another Corporate Debtor. The constitutional validity of Section 11 was challenged in the matter of Manish Kumar vs. Union of India (2021) SCC Online SC 30 and in Paragraphs 265 of the Judgment Hon ble Supreme Court observed as under: 265..........The intention of the Legislature was always to target the corporate debtor only insofar as it purported to prohibit application by the corporate debtor against itself, to prevent abuse of the provisions of the Code. It could never had been the intention of the Legislature to crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or filed a report or a complaint to the relevant statutory authority or Court: Provided that if a prosecution had been instituted during the corporate 7 insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub-section having been fulfilled: Provided further that every person who was a designated partner as defined in clause (j) of section 2 of the Limited Liability Partnership Act, 2008, or an officer who is in default , as defined in clause (60) of section 2 of the Companies Act, 2013, or was in any manner incharge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor's liability has ceased under this sub-section. (2) No action shall be taken against the property of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution plan resulting in the change of management of control of corporate debtor. This is subject to the successful resolution applicant being not involved in the commission of the offence. Statutory basis has now given under Section 32A to the law laid down by this Court in the decision of Committee of Creditors of Essar Steel(supra). This Court took the view therein that successful resolution applicant cannot be faced with undecided claim after its resolution plan has been accepted. The object is to ensure that a successful resolution applicant starts of on a fresh slate. The relevant extracts of the Statement of Objects and Reasons relied upon by the Union of India are as follows: STATEMENT OF OBJECTS AND REASONS xxx 2. A need was felt to give the highest priority in repayment to last mile funding to corporate debtors to prevent insolvency, in case the company goes into corporate insolvency resolution process or liquidation, to prevent potential abuse of the Code by certain classes of financial creditors, to provide immunity against prosecution of the corporate debtor and action against the property of the corporate debtor and the successful resolution applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest. Thus, two competing concerns need to be balanced. 17.5. The Committee noted that the proceedings under the Code, which are designed to ensure maximization of value, generally require transfer of the corporate debtor to bona fide persons. In fact, Section 29A casts a wide net that disallows any undesirable person, related party or defaulting entity from acquiring a corporate debtor. Further, the Code provides for an open process, in which transfers either require approval of the Adjudicating Authority, or can be challenged before it. Thus, the CIRP typically culminates in a change of control to resolution applicants who are unrelated to the old management of the corporate debtor and step in to resolve the insolvency of the corporate debtor following the approval of a resolution plan by the Adjudicating Authority . With regard to the actions against the property of the Corporate Debtor, Report of Insolvency Law Committee Para 17.9 to 17.11 read as under: 17.9. The Committee also noted that in furtherance of a criminal investigation and prosecution, the property of a company, which continues to exist after the resolution or liquidation of a corporate debtor, may ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Prevention of Money-Laundering Act, 2002 (for short, the PMLA) are pressed before us. It is contended that the prohibition against proceeding against the property, affects the interest of stakeholders like the petitioners who may be allottees or other creditors. In short, it appears to be their contention that the provisions cannot stand the scrutiny of the Court when tested on the anvil of Article 14 of the Constitution of India. The provision is projected as being manifestly arbitrary. To screen valuable properties from being proceeded against, result in the gravest prejudice to the home buyers and other creditors. The stand of the Union of India is clear. The provision is born out of experience. The Code was enacted in the year 2016. In the course of its working, the experience it has produced, is that, resolution applicants are reticent in putting up a Resolution Plan, and even if it is forthcoming, it is not fair to the interest of the corporate debtor and the other stake holders. 280. We are of the clear view that no case whatsoever is made out to seek invalidation of Section 32A. The boundaries of this Court s jurisdiction are clear. The wisdom of the legislation is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the former cannot take primacy over the later. Reliance is also placed on Judgment of this Tribunal in the matter of Varrsana Ispat Ltd. Vs. Deputy Director, Directorate of Enforcement , Company Appeal (AT) (Ins.) No. 493 of 2018 vide Judgment dated 2nd May, 2019 which was not interfered with when matter went to Hon ble Supreme Court in orders dated 22.07.2019 in Civil Appeal No. 5546 of 2019. It is stated that in the matter of Varrsana Ispat Ltd. this Tribunal had held that Prevention of Money Laundering Act, 2002 relates to proceeds of crime and offence relates to money laundering resulting into confiscation and thus the Act relates to proceeds of crime and so Section 14 of IBC is not applicable. The Learned Counsel referred to other Judgments to refer to the aims and objects of PMLA. 26. We have already noticed the amendment made to Section 32A and Judgment in the matter of Manish Kumar (Supra) and which shows the change of law. The reasons for bringing about such amendment are a matter of record. The aim of IBC is to find resolution to ailing corporate debtors and it was getting affected due to apprehension amongst potential resolution applicants. Aims an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation utility or the depository of securities or any other registry that records the ownership of assets. The further sub-clauses give particulars of properties to be taken over. The explanation provides as to which assets shall not be included. (D). Then under Section 20 of IBC, there is responsibility of IRP to make every endeavour to protect and preserve the value of the property of the Corporate Debtor and manage the operations of the Corporate Debtor as a going concern. When IRP is appointed as RP or is replaced by RP, even the RP has similar responsibility and powers as can be seen in Section 23 and 25. 30. Even on the stage of liquidation, under Section 34(2) of IBC all Powers of Directors etc. vest in the Liquidator. Under Section 35(1)(b), it is the duty of the liquidator to take into custody all the assets and properties of Corporate Debtor and also to carry on business of the Corporate Debtor for its beneficial liquidation as may be considered necessary by the Liquidator. Regulations to be complied Apart from these Acts, the CIRP Regulations when considered, Regulation 27 requires the RP that he shall within 7 days of the appointment but not later than 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takes place. Apart from these two contingencies, the CIRP is bound to end into either in Resolution Plan getting accepted or the Corporate Debtor going into liquidation. These two contingencies are taken care of by Section 32 A which has been recently added in IBC. If the first two contingencies happen, the normal laws would naturally get attracted as there would be a reversal to management going back to earlier hands. However, when CIRP is pending and progressing with target of Resolution, whether the attachment or seizure can be made or continued of the properties of Corporate Debtor is required to be considered. Active Attachments, seizure etc. abstract acts as above 34. It appears to us that if the aims and objects of IBC are to be achieved, and maximisation of value is material so as to reach a resolution, above acts in time bound manner are to be performed and there cannot be obstructions of attachments and seizures existing. If the property is under attachment or seizure, or possession is taken over, keeping the corporate debtor a going concern would be serious issues. Without the properties in possession of IRP/RP getting valuation done during CIRP or even liquida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Remarks 7. The qualifications for legal member of the Adjudicating Authority should exclude those who are qualified to be a District Judge and only serving or retired District Judges should be appointed. The Chairperson of the Adjudicating Authority should be the legal member. 1. Persons qualified to be a District Judge are treated on a par with District Judges for the purposes of qualification for appointment as member in ATFE under FEMA; as President of District Forum under Consumer Protection Act, 1986, etc. The eligibility criterion, for appointment as a District Judge, provided in the Constitution of India under Article 233(2), is that the person should have been an advocate for not less than seven years 2. PMLA is a specialised and new Act and District Judges may not be available with experience in related issues whereas advocates or officers of Indian Legal Service, who are eligible to be District Judges, may often have greater knowledge of its provisions and working. 3. The Adjudicating Authority is a body of experts from different fields to adjudicate on the issue of confirmation of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does appear to have been accepted that the proceedings before the Adjudicating Authority under PMLA are civil in nature. Apart from above Section 11 and Section 41 of PMLA also give insight. They read as under: 11. Power regarding summons, production of documents and evidence, etc.- (1) The Adjudicating Authority shall, for the purposes of this Act, have the same powers as are vested in a civil court under the Code of civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company or a financial institution or a company, and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) All the persons so summoned shall be bound to attend in person or through authorised agents, as the Adjudicating Authority may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as regards the Adjudicating Authority are civil in nature to the extent that it does not decide on the criminality of the offence nor does it has power to impose penalty or impose punishment. 39. Taking aid from this, it appears to us that after the attachment when matter goes before the Adjudicating Authority under PMLA, proceeding before Adjudicating Authority for confirmation would be civil in nature. That being so, Section 14 of IBC would be attracted and applies. In present matter, the Provisional Attachment took place on 29th May, 2018 and corrigendum was issued on 14th June, 2018. The CIRP started on 16th July, 2018. Once moratorium was ordered, even if the Appellant moved the Adjudicating Authority under PMLA, further action before Adjudicating Authority under PMLA must be said to have been prohibited. Even if confirmation has been done as stated to have been done on 20th November, 2018, the same will have to be ignored. Section 14 of IBC will hit institution and continuation of proceedings before Adjudicating Authority under PMLA. The CIRP will of course not affect prosecution before Special Court, till contingencies under Section 32A of IBC occur. 40. In Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons and to promote entrepreneurship, availability of credit and balance the interest of all stakeholders including alteration in the order of priority of payment of Government dues. Section 238 of IBC reads as under: 238. The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. If this Section is perused, the provisions of this Code would have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 238 of IBC does not give over riding effect merely to Section 14. The other provisions also are material, and will have effect if there is anything inconsistent therewith contained in any other law for the time being in force. Thus if the Authorities under PMLA on the basis of the attachment or seizure done or possession taken under the said Act resist handing over the properties of the Corporate Debtor to the IRP/RP/Liquidator the consequence of which will be hindrance for them to keep the Corporate Debtor a going concern till resolution takes place or liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
