9911796707
TMI Blog2021 (4) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... een established beyond doubt that these are of the nature of operational debt. Further, B.S.E is not a Statutory Authority and it is a commercial entity established under a statute, hence, an entity of this nature, B.S.E can file an application under Section 9 of IBC, 2016. Merely because in the authorization, it has been mentioned that the person was authorized to recover the dues, such authorization does not alter the nature of application. At this point of time, we consider it pertinent to mention that if this logic is applied then all applications filed under Section 9 can be dismissed because such petitions are essentially filed for this purpose only irrespective of wordings of authorization. Even, applications under Section 7 of IBC, 2016 have got primary purpose of recovery. The design of IBC, 2016 is successful because of two factors i.e., it is a regime where creditors take charge of the Corporate Debtor and stringent timelines have been provided so that timely resolution or liquidation can take place. No specific guidelines either under statute or by judicial pronouncements have been provided in this regard and the criteria under IBC, 2016 is default and not inabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Clause 3 of renewal of this agreement dated 05.04.2016 whereby the Corporate Debtor had undertaken to pay listing and such other fees/fines as may be specified/levied by the exchange from time to time within prescribed period. On this basis, it was claimed that application was liable to be admitted. In addition to this, it was also pointed out that the name of the Interim Resolution Professional had also been proposed whose consent was on record. Submissions of Corporate Debtor 4. Learned Counsel for the Corporate Debtor, on the other hand, pleaded that the application was not maintainable for the reason that regulatory dues did not fall within the definition of operational debt. For this view, the learned counsel relied on the report of Insolvency Law Committee dated 26.03.2018 at first place. Thereafter, the Learned Counsel for the Corporate Debtor also relied on the decision of NCLT Mumbai Bench in the case of Bombay Stock Exchange Limited vs. Asahi Infrastructure Projects Limited in CP No. 1718/IBC/NCLT/MB/MAH/2017 MA 216/2018 dated 11.02.2019. 5. Thereafter, it was claimed that application filed by Operational Creditor was in regard to recover the arrears of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding amount of invoices which are within the limitation period is more than ₹ 1,00,000/-. We have also perused the relevant Clause 38 of the original agreement as well as Clause 3 of renewal agreement. As per these clauses, the liability of the Corporate Debtor has accrued and remains to be paid. As far as the nature of such dues is concerned, it has been established beyond doubt that these are of the nature of operational debt. Further, B.S.E is not a Statutory Authority and it is a commercial entity established under a statute, hence, an entity of this nature, B.S.E can file an application under Section 9 of IBC, 2016. We are further of the view that merely because in the authorization, it has been mentioned that the person was authorized to recover the dues, such authorization does not alter the nature of application. At this point of time, we consider it pertinent to mention that if this logic is applied then all applications filed under Section 9 can be dismissed because such petitions are essentially filed for this purpose only irrespective of wordings of authorization. Even, applications under Section 7 of IBC, 2016 have got primary purpose of recovery. The design o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of the Corporate Insolvency Resolution Process or until this Adjudicating Authority approves the Resolution Plan under sub-section (1) of the Section 31 or passes an order for liquidation of Corporate Debtor Company under Section 33 of the Insolvency Bankruptcy Code, 2016, as the case may be. 3. The Operational Creditor has not proposed the name of the Interim Resolution Professional (IRP). Therefore, this Adjudicating Authority hereby appoints Ms. Dipti Mehta, having Registration No. IBBI/IPA-002/1B-N00134/2017-18/10350, having address at: 201-206, Shiv Smriti Chambers, 2nd Floor, 49/A, Dr. Annie Besant Road, Above Corporation Bank, Worli, Mumbai-400018, e-mail: dipti(a)mehtamehta.com to act as an IRP under Section 13(1) (c) of the CODE. 4. The IRP shall perform all his functions as contemplated, inter-alia, by Sections 17, 18, 20 21 of the Code. It is further made clear that all personnel connected with Corporate Debtor, its Promoter or any other person associated with management of the Corporate Debtor are under legal obligation under Section 19 of the Code extend every assistance and co-operation to the Interim Resolution Professional. Where any personne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
