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TMI Blog2019 (7) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor during the Moratorium period. - Company Appeal (AT) (Insolvency) No. 665 of 2018 - - - Dated:- 9-5-2019 - Mr S.J. Mukhopadhaya, Chairperson, Mr A.I.S. Cheema, Member (Judicial) And Mr Kanthi Narahari, Member (Technical) For The Appellant : Mr. Ajit Kumar Sinha, Senior Advocate with Mr. Sohel Rishabh and Mr. Ritesh Agrawal, Advocates For The Respondents : Mr. Kinshuk Chatterjee and Ms. Deepti Bhardwaj, Advocates And Mr. Krishnendu Dutta, Mr. N. Raja Singh, Ms. Manisha Chaudhary and Mr. Niladree Chatterjee, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. The Appellant, Shareholder of M/s. HBN Dairies Allied Ltd. - ( Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by the long delay due to action of the Securities and Exchange Board of India , therefore, they filed jointly the Insolvency Petition application under Section 7 of the I B Code for initiating the Corporate Insolvency Resolution Process , wherein the impugned order was passed. 5. Learned counsel appearing on behalf of 2nd to 34th Respondents submitted that the said Scheme of the Corporate Debtor was held to be an un-authorised Collective Investment Scheme by the Securities Exchange Board of India vide its order dated 12th February, 2015. The said order dated 12th February, 2015 passed by the Securities and Exchange Board of India was challenged before the Securities Appellate Tribunal , Mumbai. In terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Resolution Professional to act in terms of the provisions therein including clause (e) of Section 17(2) which reads as follows: 17. Management of affairs of corporate debtor by interim resolution professional.- ( 1) From the date of appointment of the interim resolution professional,- ( a) the management of the affairs of the corporate debtor shall vest in the interim resolution professional; xxx xxx xxx ( 2) The interim resolution professional vested with the management of the corporate debtor shall- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any direction of the Board for refund of monies or fails to comply with a direction of disgorgement order issued under section 11B or fails to pay any fees due to the Board, the Recovery Officer may draw up under his signature a statement in the specified form specifying the amount due from the person (such statement being hereafter in this Chapter referred to as certificate) and shall proceed to recover from such person the amount specified in the certificate by one or more of the following modes, namely:- ( a) attachment and sale of the person's movable property; ( b) attachment of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, it shall, even after the date of attainment of majority by such minor child or son's minor child, as the case may be, continue to be included in the person's movable or immovable property or monies held in bank accounts for recovering any amount due from the person under this Act. Explanation 2. - Any reference under the provisions of the Second and Third Schedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 to the assessee shall be construed as a reference to the person specified in the certificate. Explanation 3 .- Any reference to appeal in Chapter XVIID and the Second Schedule to the Income-tax Act, 1961, shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reads as follows: 238. Provisions of this Code to override other laws .- 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. 19. Section 28A of the SEBI Act, 1992 being inconsistent with Section 14 of the I B Code , we hold that Section 14 of the I B Code will prevail over Section 28A of the SEBI Act, 1992 and Securities Exchange Board of India cannot recover any amount including the penalty from the Corporate Debtor . The Bombay Stock Exchange for the same very reason cannot take any coercive steps against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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