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TMI Blog2019 (12) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... ue about the applicability of the Code to M/s.Hindustan Antibiotics Ltd., the members of the National Company Law Tribunal are divided in their opinion. There is now a reference made to the third member. We do not think that the National Company Law Tribunal should precipitate the matter when a constitutional challenge is pending before this Court. None can dispute that it is only this Court which can deal with the challenge raised to the constitutional validity of the provisions of the IBC. We do not think that the NCLT would be well advised in proceeding with the matter. We think that the petitioner has made out a strong prima facie case for grant of interim relief and balance of convenience is also in its favour. Issue notice to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated by the Respondent Nos.7 namely Mr.Harsh S. Pinge and the Respondent No.8 namely M/s.Galpha Laboratories Ltd., and the Respondent No.10 namely Mr.K.K. Lonkar against the Petitioners before the Respondent No.3 [(NCLT Bench Nos.III, II III at Mumbai respectively] may kindly be stayed forthwith; (d) Pending the hearing and final disposal of the above Writ Petition, the recovery proceedings initiated by the Respondent No.9 against the Petitioners before the Controlling Authority under the payment of Gratuity Act, 1972 and notice dated 06-03-2019 issued the Respondent No.9 under the IBC Code may kindly be stayed forthwith; (e) Pending the hearing and final disposal of the above Writ Petition, the recovery proceedings initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any under the control and supervision of Department of Pharmaceuticals, Ministry of Chemicals and Fertilisers, Government of India. The Honourable President of India holds 100% shares of M/s.Hindustan Antibiotics Ltd. The Managing Director and other Directors of the Board have been appointed by the honourable President of India. The nominee Directors have been appointed by the Central Government. Thus, this is an entity under the direct control of the Central Government for administration, policy making and all aspects dealing with the management and day to day affairs. 4. The employees of the company had moved the Company Petition No.CP (IB) No.2482 of 2018 under section 9 of the Insolvency and Bankruptcy Code, 2016 (for short, IBC ). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are totally without jurisdiction from the inception and particularly in the light of the constitutional challenge, the NCLT could not have taken cognisance of the application. 5. The apprehension of the learned Senior Counsel Shri Ray Choudhuri appearing for the applicant before us is that the matter now stands referred to a third member. He is likely to retire by the end of this month (December, 2019). If in his haste, he passes an order, the entire petition before this Court could be rendered infructuous. 6. On the other hand, it is argued before us by the learned Advocate Shri Katariya, appearing for the contesting respondent, the original applicant before the NCLT, that the petitioner has committed a default in making a payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an issue with regard to the constitutional validity of the provisions of the IBC, therefore, cannot be decided by the National Company Law Tribunal which is but a creature of the IBC. We do not also think that the issue is concluded by a judgment relied upon by the Counsel appearing for the original applicant, the contesting respondent before us. To our mind, we would have to probe a little deeper into this aspect particularly to decide whether the judgment of the Hon ble Supreme Court rendered in Writ Petition (Civil) No.1074 of 2019 (Hindustan Construction Company Ltd. anr. vs. Union of India others with other connected matters, decided on 27.11.2019, clinches or concludes the issue against the petitioner. Pertinently therein, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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