9911796707
TMI Blog2017 (10) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... and pass the final order but positively before expiry of 180 days from the date of PAO. X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant Financial Creditor, and to the Respondent Corporate Debtor and to the Interim Insolvency Resolution Professional. 3. The order passed by the Adjudicating Authority on 20th September, 2017 has been challenged by the appellant on various grounds. On 26th September, 2017, we directed the Adjudicating Authority to adjourn the matter after 05th October, 2017 so that the present appeal may be heard on the date fixed. However, we have been informed that despite our direction and knowledge about our order, the matter was heard by the Adjudicating Authority for some time as informed by the learned counsel for the parties, if that is so in our opinion, it is a serious matter. We direct that in future, the Adjudicating Authority should be very careful and must follow the directions issued by the higher authority. 4. Mr. Desai, learned senior counsel for the appellant has made various submissions and has also referred to various provisions of the Act Insolvency and Bankruptcy Code, 2016. His first submission is that the proceeding pending before us as well as the Adjudicating Authority is in the nature of civil proceeding. In support of his argument, he has referred the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f compliance of first proviso. Various safeguards impose fetters upon the attaching officer obliging him to immediately send the order made by him and the factum of attachment of the property made by him within the prescribed period to the Adjudicating Authority to enable it to adjudicate upon such attachment. It is pertinent to note that the legislative intent insofar as powers of the Adjudicating Authority are concerned, is made clear under Section 6 (15) by clarifying that it is not bound by the procedure laid down by the Code of Civil Procedure. Thus, if the Adjudicating Authority was intended to be an authority dealing with the criminal acts, the proviso dispensing with Code of Civil Procedure would have been made. These facts thus sindicate that the Adjudicating Authority under Section 8 is authorized to undertake civil proceedings and adjudicate thereupon as rightly argued by the learned counsel for the respondents." 5. Learned senior counsel for the appellant further submits that since the proceeding pending under Section 5 and 8 are not in the nature of criminal proceeding, para 14 of the order passed by the Adjudicating Authority (NCLT) is not applicable in the said cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oruka Steel Ltd. v. Fairgrowth Financial Services Ltd. it had been contended that recovery proceedings under the Special Court Act should be stayed in view of the provisions of the 1985 Act. Rejecting this connection, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The headnote which brings out succinctly the ration of the said decision is as follows: "Where there are two special statutes which contain non obstante clauses the later statute must prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply. The Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, provides in Section 13. that its provisions are to prevail over any other Act. Being a later enactment, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted. If an interpretation is given that the Sick Industrial Companies (Special Provisions) Act 1985, is to prevail then there would be a clear conflict. However, there would be no conflict if it is held that the 1992 Act is to prevail. On such an interpretation the objects of both would be fulfilled and there would be no conflict. It is clear that the Legislature intended that public monies should be recovered first even from sick companies. Provided the sick company was in a position to first pay back the public money, there would be no difficulty in reconstruction. The Board for Industrial and Financial Reconstruction whilst considering a .scheme for reconstruction has to keep in mind the fact that it is to be paid off or directed by the Special Court. The Special Court can, if it is convinced, grant time or installments. There can, therefore, be no stay of any proceedings for recovery against a sick company so far as the Special Court under the 1992 Act is concerned." 11. We are in agreement with the aforesaid decision of the case, more so when we find that whenever the legislature wishes to do so it makes appropriate provisions in the Act in that behalf. Mr Shira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of I.R.P, who has been given the assignment to dispose of the properties agrees that the present Act Insolvency and Bankruptcy Code, 2016 has an overriding effect on PMLA, 2002. His argument is that the provisional attachment order is liable to be set aside but the same should not be interfered with by this Tribunal as validity of the provisional attachment order is to be determined by the Adjudicating Authority, who has the competent jurisdiction to decide the issue. Accordingly the appeal is not maintainable before this Tribunal. He argues that if any appeal is to be filed, it is to be filed by IRP and not the appellant. His argument is that he has already filed the reply to the provisional attachment order and the same has to be considered by the Adjudicating Authority on merits as per settled law. 9. We are of the view that there is force in the submissions of learned Mr. Pankaj Vijayan, IRP. However, we are of the view that all the issues raised by the parties are to decided by the Adjudicating Authority after hearing. 10. Under these circumstances, the present appeal is disposed of with the direction that the parties shall appear before the Adjudicating Authority on 10th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
