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TMI Blog2019 (2) TMI 1668X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground of commencement of Moratorium in case of admission of insolvency petition - SEBI has enough power to realize the outstanding debt by direct recovery from the revenue operations of the debtor. The Petition is defective as the Petitioner does not owe Operational/Financial dues to SEBI or BSE or any other entity. As far as the regulatory dues of SEBI and BSE are concerned, SEBI has its own separate mechanism to recover the same. No fruitful purpose shall be served to declare the Corporate Debtor as insolvent having business operations or resources of sufficient income through which the statutory liability ought to have been squared up under the instructions of the regulatory authorities. Petition dismissed. - CP/204/I&BC/NCLT/MB/MAH/2018 - - - Dated:- 12-2-2019 - M. K. Shrawat, Member ( Judicial ) For the Petitioner : M. K. Shrawat, Member, (Judicial) Advocate Darshan Ashar i/b Sanjay Udeshi Co. ORDER Per : M. K. Shrawat, Member (Judicial) 1. This is an application wherein Vyomit Shares Stock Investment Private Limited (hereinafter as Petitioner ) has furnished Form No. 6 under Rule 7 of the Insolvency and Bankru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability are shown in the account summary dated 01.01.2018. For the sake of completeness of facts, the notice of 27.10.2017 [EFD1/RD1/TK/OW/26268/2017] issued by SEBI is reproduced below: - 5.1 The books of accounts of the Corporate Applicant corroborate the dues payable as the same are shown in the Balance Sheet dated 31.03.2017 under the Head Other Current Liabilities . The financial position of the Corporate Debtor has also been examined from the Balance Sheet drawn as on 28.01.2018 and Profit Loss Statement as on 31.03.2017 and the Company has earned a profit of ₹ 12,40,850/- before tax. Since, the Corporate Debtor is earning sufficient annual income, therefore, prima facie, it appears that there is no good reason for this applicant/Corporate Debtor to declare itself as insolvent. The Petitioner has placed on record a Resolution dated 18.01.2018 of Board authorising the Director Mr. Rajiv R Trivedi to file application under section 10 of Insolvency and Bankruptcy Code. The Balance Sheet of the Company as on 31.03.2017 shows the amount of liabilities under the head Other Current Liabilities to be ₹ 8,74,42,840/- and the Company has cash balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced below: SEBI Circular No. CIR/CFD/CMD/12/2015 Dated 30.11.2015 Sub: Non-compliance with certain provisions of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 and Standard Operating procedure for suspension and revocation of trading of specified securities 1 2. Sub regulations (1) and (2) of regulation 98 of Listing Regulations inter alia specify liability of a listed entity or any other person for contravention and actions which can be taken by the respective stock exchange and the revocation of such actions, in the manner specified by SEBI. 3 .. 4 .. 5 .. 6. Recognized stock exchanges may, having regard to the interests of investors and securities market, take appropriate action in line with the principles and procedures laid down in Annexure I and II and any deviation therefore should not dilute the spirit of the policy contained therein. Any deviation shall be on justifiable reasons to be recorded in writing. The above actions are without prejudice to power of SEBI to take action under securities laws for above violations. 7 8. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Debt. Because of this final observation as made in Para 1.20 of the Law Commission Report this Bench is of conscientious view that in spite of the fact that there was a listing agreement executed between BSE with the Corporate Debtor being issuing company, but totally governed and supervised by the regulations issued by SEBI dated 02.09.2015. As discussed supra, the regulatory authority i.e. SEBI is already empowered to execute not only its recovery mechanism, but also enshrined with power to punish the defaulter, hence, the insolvency proceedings shall not be gainful either to the Regulator or the Exchange. As a consequence, the debt in question can also be categorised under the head Regulatory Dues . The debt in question thus falls within the ambit of Regulatory Dues . Therefore, as a sequel, need not be treated as an operational debt. 19. Before we part with, it is also worth to add in this order that sub-section 3 of section 14 w.r.e.f 06.06.2018 prescribing that the transaction notified in consultation with Financial Sector Regulator be not covered under Moratorium clauses. By this substitution in Sec.14 IBC the intention of legislature is very cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir orders and recover dues. For example, section 24(2) of the SEBI Act, 1992 states as follows: If any person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any of his directions or orders, he shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to ten years, or with fine, which may extend to twenty-five crore rupees or with both. 1.18 With respect to point (ii), the Committee noted that prior to the coming into force of the Code, preferential payments in relation to winding up of companies was governed by section 327 of the Companies Act, 2013 ( CA 2013 ) (the corresponding provision in the Companies Act, 1956 ( CA 1956 ) was section 530). Neither section 327 of the CA 2013 nor section 530 of the CA 1956 provided any preferential treatment to regulatory dues and only covered all revenues, taxes, cesses and rates due from the company to the Central Government or State Government or to a local authority at a relevant date . 1.19 Moreover, the overarching intention of the Code to prioritize debts owed to unsecured financial creditors was sufficiently clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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