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TMI Blog2024 (7) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... cts such as active pharmaceuticals ingredients for multi-therapeutic segments. By an order dated 06.02.2018, the Nation Company Law Tribunal (hereinafter referred to as "NCLT") admitted the petitioner company to the Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") on an application filed by the State Bank of India. One Mrs.Charu Sandeep Desai was initially appointed as the Interim Resolution Professional of the petitioner company and later appointed as Resolution Professional (hereinafter referred to as "RP"). The powers as well as the management of the petitioner company was vested with RP. 3. The RP issued public advertisement inviting prospective resolution applicants to submit a resolution plan for resolving the insolvency of the petitioner company. In response, two companies incorporated under the Laws of India viz., M/s.Khilari Infrastructure Private Limited and M/s. Topnotch Chemicals Private Limited (hereinafter referred to as "resolution applicant") submitted their resolution plan for revival of the petitioner company and the resolution of its insolvency. 4. In pursuant to the approval of the resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith show cause notice dated 31.03.2017, issued by the then Adjudicating Authority, for the alleged contravention of the FEMA laws by the petitioner company in respect of the nine consignments, which had not cleared in 2010-2011. 6.2. The enquiry was sought to be held as contemplated under Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeals) Rules, 2000, after giving opportunity of hearing to the petitioner company and the second respondent. In fact, already resolution plan was approved by the NCLT and the resolution applicant was in the process of taking over the petitioner company. However, the petitioner and the second respondent had taken adjournment and informed to Resolution Professional. In turn, the Resolution Professional by her letter dated 16.08.2019 informed to the first respondent about the order passed by the NCLT. She had demitted office as RP and thus, she was no longer in charge of the affairs of the company. 6.3. In the meanwhile, on 28.12.2019, the President of India promulgated the Insolvency and Bankruptcy (Amendment) Ordinance, 2019 bringing about certain amendments in the Insolvency and Bankruptcy Code, thereby introduced Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and the second respondent herein. 7.1. He further submitted that a statement was recorded from the second respondent, who was the founder of the petitioner company, under Section 37 of FEMA. He had admitted that the petitioner company had imported 23 consignments of chemical during the year 2010-2011 through Chennai port and they imported various chemicals from M/s. Victory Mercantile Corporation, Singapore. However, in these 23 consignments there were no imports. The reason for not clearing the consignments, he stated that the material was sold on high seas sales to Avon Organics and Apex Drugs & Intermediates in Hyderabad and their clearing agent wrongly filed the Bill of Entry which was later amended for high seas and in the entire process took four to six months and the customers cancelled the order and the Bill of Entry had to be refiled. Therefore, it was ascertained that the petitioner had cleared only 13 consignments and failed to clear eight consignments and there is no Bill of Entry in respect of two consignments. The second respondent further stated that the petitioner did not have any finances and as such, they could not be cleared the consignments. They unable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory forum of appeal on a question of law. That should not be abdicated and given a go-by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact, there could hardly be any reason since the High Court itself is the appellate forum." Therefore, the writ petition itself is not maintainable since, there is alternative remedy provided under Section 16(1), 19(1) and 35 of the FEMA. 10. That apart, the petitioner was not granted any immunity from the adjudication proceedings initiated under the provisions of FEMA. Whereas as per the order passed by the NCLT, the company had immunity from regulatory or administrative proceedings but not adjudicating proceedings as per Section 43 of FEMA. Further the proceedings arising in relation to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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