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TMI Blog2019 (12) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule be issued; (b) this Hon'ble Court may be pleased to hold and declare that the provisions of Insolvency and Bankruptcy Code, 2016 and more particularly Section 3(8), Section 3(23) and Section 238 and also Sections 7, 8 & 9 are unfair, illegal, drastic, unreasonable and arbitrary and are in direct conflict with statutory provisions of Companies Act, 2013 and they are also violative of Article 14 of the Constitution of India so far as "Government companies" are concerned and therefore the same are required to be declared as ultra vires, invalid, null and void. (c) Pending the hearing and final disposal of the above Writ petition, the recovery proceedings initiated by the Respondent Nos.7 namely Mr.Harsh S. Pinge and the Respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (h) Ad-interim and interim reliefs in terms of prayer clause (c) to (g) above be granted; (i) Costs of the Writ Petition; (j) Any other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case;" 2. This petition, after it was filed on 4.5.2019, is pending. 3. During the pendency of this petition, the petitioner had contended before the National Company Law Tribunal where it is facing proceedings under Insolvency and Bankruptcy Code, 2016 that it has filed this Writ Petition and it is pending. They pointed out that M/s.Hindustan Antibiotics Ltd. is a Government of India enterprise and Government company under the control and supervision of Department of Pharmaceuticals, Ministry of Chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im Application, to take appropriate steps including referring the matter to a third member. Thereafter, a third member (Judicial) was nominated to take up the matter. When the parties appeared before the third Member, once again objections were raised and particularly about the matter being pending here, that a bench of a Judicial and Technical Member could not have decided the matter in the manner it purported to decide, when the fundamental and basic issue was can the Code be invoked at all in cases of the entities like the petitioner. The arguments have been noted but what the apprehension of the petitioner before us is that all these proceedings are totally without jurisdiction from the inception and particularly in the light of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference to a third member. Further, on the core issue about the applicability of the Code to M/s.Hindustan Antibiotics Ltd., the members of the National Company Law Tribunal are divided in their opinion. There is now a reference made to the third member. We do not think that the National Company Law Tribunal should precipitate the matter when a constitutional challenge is pending before this Court. None can dispute that it is only this Court which can deal with the challenge raised to the constitutional validity of the provisions of the IBC. That the NCLT exercises the jurisdiction conferred on it by the IBC is undisputed. That such an issue with regard to the constitutional validity of the provisions of the IBC, therefore, cannot be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e event the proceedings are concluded. 9. Therefore, we pass the following order on the Writ Petition: i) Issue notice to the learned Attorney General for India on the point as to whether the provisions of IBC, as alleged, are ultra vires Article 14 and other relevant Articles of the Constitution of India. ii) Notice be also issued to other respondents, returnable on 22.1.2020. We grant leave to serve the notices privately in addition to the service by Court. The applicant before the NCLT is represented before us by the advocate for respondent Nos.7 and 10. Therefore, they waive service of the notice. Their advocate accepts notice and says that Vakalatnama would be duly filed. iii) Pending further orders of this Court, there will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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