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TMI Blog2021 (9) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... or could not have moved the Adjudicating Authority for orders to tide over the attachment. Applicability of Section 32A - HELD THAT:- In the present matter, the argument that unless liquidation takes place, protection of Section 32A cannot be invoked is not well founded. Unless property becomes available and is subjected to the Liquidation Process under Chapter III Part II of the IBC, the applicability or inapplicability of Section 32A cannot be claimed. As per Chapter III, the Liquidator is duty bound under Section 35 to take into custody or control all the assets, property, effects and actionable claims of the Corporate Debtor. Explanation below sub-section (2) of Section 32A makes it clear that no action shall be taken against the property of the Corporate Debtor in relation to an offence committed prior to the commencement of CIRP and the action includes the attachment, seizure, retention or confiscation of such property under such law as may be applicable to the Corporate Debtor. If in liquidation, there is a change of control of Corporate Debtor to a person who was not a promoter or in management or in control of the Corporate Debtor or a related party of such person, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 20-9-2021 - [Justice A.I.S. Cheema] The Officiating Chairperson And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. Arun Kathpalia, Senior Advocate with Mr. Sandeep Bisht, Mr. Ranjan Kumar Pandey, Advocates For the Respondents : Mr. Abhishek Anand, Ms. Mohak Sharma, Mr. Kunal Godhwani, Advocates for R-1. Mr. Aniruddha Joshi, Mr. Aaditya Pande, Mr. Rahul Chitnis, Advocates for R-2 JUDGMENT A.I.S. Cheema, J. 1. Company Appeal (AT) (Insolvency) No.293 of 2020 arises out of impugned order dated 15th January, 2020 passed by the Adjudicating Authority (NCLT), New Delhi, Court-III in CA 332 of 2018 in IB- 189(ND)/2017. 2. Company Appeal (AT) (Insolvency) No. 301 of 2020 is also arising out of the same impugned order. The Deputy Collector and Competent Authority has filed the Appeal for National Spot Exchange Limited (NSEL) (Deputy Collector- in short) 3. CA 332 of 2018 was filed by the Resolution Professional when Corporate Insolvency Resolution Process (CIRP) was pending against the Corporate Debtor- Namdhari Food International Private Limited seeking removal of attachment order dated 22.10.2018 vide which accounts of the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed Report No.4 of 2016 dated 27.01.2016, which was subsequently accepted by the Hon ble Bombay High Court vide its order dated 27.02.2017. NSEL has filed copy of the Report (Annexure- A4, Page 74) and order dated 27.02.2017 of the Hon ble Bombay High Court (Annexure- A5, Page 97). The Appeal claims and it is argued for the Appellant- NSEL that one of the trading clients namely- Pankaj Saraf has lodged a complaint with EoW and FIR was registered. Subsequently, charge sheet was filed against the Corporate Debtor under various Sections of Indian Penal Code (IPC) and Section 3 of the Maharashtra Protection of Interest of Depositors (in Financial Establishment) Act, 1999 ( MPID Act for short). The charge-sheet was filed at designated MPID Court, Mumbai as Case No.5 of 2019 was registered. NSEL has stated that the Competent Authority/ Government of Maharashtra in exercise of its powers under Sections 4 and 5 of the MPID Act attached the properties of the Corporate Debtor vide notification dated 31.03.2017 (Annexure- A-6; Page 98) (Second Page of Annexure A-5 is also marked by Advocate as 98 . We treat that Page as 97A). Further, the Government of Maharashtra in exercise of its pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 60(5) read with Section 14 of the Insolvency and Bankruptcy Code, 2016; b) Pass an order directing the Deputy Collector and Competent Authority (NSEL), Office of Collector and District Magistrate, Mumbai City to remove the attachment on/ defreeze the bank accounts of the Corporate Debtor which were attached/frozen by the Deputy Collector and Competent Authority (NSEL), Office of Collector and District Magistrate, Mumbai City vide its letter dated 22 October 2018 (Emphasis supplied) 7. Thus, the removal sought was of the attachment of the accounts of the Corporate Debtor. 8. The Appeal claims and it is argued for the Appellant that such CA 332 of 2018 was filed by the Resolution Professional. It is claimed that the Resolution Professional had sought intervention in MA 1512 of 2017 in MPID Special Case No. 1 of 2014 and its Application was rejected by the Designated Court, Mumbai under the MPID Act, vide order dated 30.11.2018 which declined to detach the properties of the Corporate Debtor but gave liberty to the IRP to contest the objection before the Court under Section 7 of the MPID Act. NSEL has attached copies of the MA and order passed in MA in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim that the Advocate was instructed and given reply to be filed etc.) 10. In the Appeal, Deputy Collector has referred to the notification dated 31.03.2017 which was issued by the Government of Maharashtra and filed copy of the notification dated 19.10.2018 (Annexure A-D; Page 64 of the Appeal) which apart from the Corporate Debtor took action against other defaulting entities also. Details of the various Bank accounts of the Corporate Debtor are at Serial No.6 of the Schedule where accounts other than State Bank of India are also attached under sub-section (1) of Section 4, Section 5 and Section 8 of the MPID Act. 11. In the Appeal, by the Deputy Collector, it is claimed that IBC is not meant to protect entities which have committed fraud. IBC cannot have overriding effect on MPID Act and the Corporate Debtor cannot take advantage of IBC. 12. We have already referred to the gist of the Appeals. Unless mentioned otherwise, we would be normally referring to documents and averments made at the time of arguments in Company Appeal (AT) (Insolvency) No. 293 of 2020. Submissions in brief 13. Learned Senior Counsel for the Appellant- NSEL has argued that the Resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held by the Hon ble Supreme Court in Paras 51.1 and 51.2., as under:- 51.1. Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the 7th Schedule to the Constitution of India. 51.2. In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other. 14. It is argued that MPID Act having been enacted under the State List over which the Parliament has no jurisdiction to make enactments which would override the provisions of MPID Act. It is also argued that the IBC nowhere mentions or discusses attachment of properties and how the same are to be treated. Thus, reliance could not be placed on Section 238 of the IBC is submitted by the Appellants. 15. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken under such law as may be applicable .. (Emphasis supplied) 16. Relying on the above explanation, it is argued that the Liquidator is duty bound to take over the properties of the Corporate Debtor as per Section 35(1) (b) of the IBC and to form liquidation estate under Section 36 of the IBC and claims are to be verified and paid as per provisions found under Chapter III of Part II of the IBC. If there are deposit holders, they would have to be dealt with under these provisions of the IBC and they would get their dues. The proceeds from the sale would be distributed in terms of Section 53 of the IBC and thus, the attachment of accounts done cannot stand in the way of liquidator to perform his duty under the IBC. The attachment of accounts done after CIRP was initiated could not have been enforced in view of Moratorium which got attracted under Section 14 of the IBC. The attachment is civil in nature and no single class of creditors can benefit from the assets of the Corporate Debtor. It is argued that the Liquidator has admitted claim of NSEL to the extent of ₹ 51,01,73,352.72/-. 17. The Counsel for the Liquidator has relied on judgment of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest or other benefits assured or to provide the service against which the deposit is received, the Government may, in order to protect the interest of the depositors of such Financial Establishment, after recording reasons in writing, issue an order by publishing it in the Official Gazette, attaching the money or other property believed to have been acquired by such Financial Establishment either in its own name or in the name of any other person from out of the deposits, collected by the Financial Establishment, or if it transpires that such money or other property is not available for attachment or not sufficient for repayment of the deposits, such other property of the said Financial Establishment or the promoter, director, partner or manager or member of the said Financial Establishment as the Government may think fit. (2) On the publication of the order under sub-section (1), all the properties and assets of the Financial Establishment and the persons mentioned therein shall forthwith vest in the Competent Authority appointed by the Government, pending further order from the Designated Court. (3) The Collector of a District shall be competent to receive the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of this Act, follow the summary procedure as contemplated under Order 37 of the Civil Procedure Code, 1908 and exercise all the powers of a court in hearing a suit under the said Code and any person making an objection shall be required to adduce evidence to show that on the date of the attachment he had some interest in the property attached. (6) After investigation under sub-section (5), the Designated Court shall pass an order either making the order of attachment passed under sub-section (1) of section 4 absolute or varying it by releasing a portion of the property from attachment or cancelling the order of attachment: .. Thus, provisions of CPC are attracted to deal with attachment made. 20. Section 8 deals with contingency where the assets available for attachment of a Financial Establishment or other person referred to in Section 4 are found to be less than the amount or value which such Financial Establishment is required to re-pay to the depositors. Section 9 deals with Security in lieu of attachment for which the concerned Financial Establishment or person whose property has been or is about to be attached may apply to the Designated Court. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Supra) also and in para 15 of the judgment the Hon ble Supreme Court held that the Hon ble Supreme Court respectfully disagreed with the view taken by the Bombay High Court. It was observed that though there are some differences between the Tamil Nadu Act and the MPID Act, they were minor differences and the view the Hon ble Supreme Court has taken will apply in relation to MPID Act also. The Hon ble Supreme Court then referred to List I and List II (Union List and State List) under the Seventh Schedule of the Constitution and held that the Tamil Nadu Act enacted by State Legislature was not in pith and substance referable to legislative heads contained in List I of the Seventh Schedule of the Constitution though there may be some overlapping. The Hon ble Supreme Court held in pith and substance the said Act comes under the State List of the Seventh Schedule. The Learned Counsel for the Appellants before us has referred to this portion of the judgment in the matter of K.K. Baskaran (Supra) to submit that MPID Act would be a matter under the State List. It is argued that the Hon ble Supreme Court in the matter of Innoventive Industries Ltd. (supra) held in para 58 that the IBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Cl. (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in cl. (1), cl. (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol order issued by the Central Government under sub-s. (1) of s. 3 of the Essential Commodities Act relatable to Entry 33 of List III and therefore sub-s. (3) of s. 5 of the Act which is a law made by the State Legislature is void under Art. 254(1). The question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void. Art. 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non-obstante clause in Art. 246(1) read with the opening words Subject to in Art. 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression a law made by P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such matter is a matter enumerated in the State List 28. Keeping this Article of the Constitution before us and considering observations of the Hon ble Supreme Court in para 69 the matter of Hoechst Pharmaceuticals Ltd. (supra), we do not find that there is any difficulty with regard to primacy of IBC and applying Section 238 of the IBC which in case of inconsistency has overriding effect on other laws. Section 238 of the IBC 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. 29. Thus, although Section 14 of the MPID Act (which is an Act earlier to IBC) has effect notwithstanding anything inconsistent with any other law, the said Section 14 would be subject to the subsequent Code promulgated by the Government of India which has amended laws related to insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner. 30. We have already referred to provisions of MPID Act in short. Earlier this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that matter, the Corporate Debtor was M/s. Tiffin Barytes Asbestos and Paints Ltd. CIRP started in that matter on 12th March, 2018 before NCLT, Chennai. The Corporate Debtor held a mining lease which was to expire on 25th May, 2018. Government of Karnataka had given pre-mature termination of lease notice on 09.08.2017. The IRP made effort by writing to the Director of mines and Geology seeking benefit of deemed extension of the lease up to 31st March, 2020 in terms of Mines and Minerals (Development and Regulation) Act, 1957. As there was no response, IRP filed a Writ Petition WP No. 23075 of 2018 before the High Court of Karnataka seeking relief. Government of Karnataka rejected the proposal of deemed extension on 26.09.2018. In view of such order, the IRP withdrew Writ Petition No. 23075 of 2018 with liberty to file fresh Writ Petition but instead filed Miscellaneous Application before the NCLT, Chennai which passed ex-parte orders on 11th December, 2018 setting aside order of Government of Karnataka treating it in violation of moratorium under Section 14 of IBC. Adjudicating Authority directed Government of Karnataka to execute Supplement Lease Deeds. The Government filed Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance a case where a corporate debtor had suffered an order at the hands of the Income Tax Appellate Tribunal, at the time of initiation of CIRP. If Section 60(5)(c) of IBC is interpreted to include all questions of law or facts under the sky, an Interim Resolution Professional/Resolution Professional will then claim a right to challenge the order of the Income Tax Appellate Tribunal before the NCLT, instead of moving a statutory appeal under Section 260A of the Income Tax Act, 1961. Therefore the jurisdiction of the NCLT delineated in Section 60(5) cannot be stretched so far as to bring absurd results. (It will be a different matter, if proceedings under statutes like Income Tax Act had attained finality, fastening a liability upon the corporate debtor, since, in such cases, the dues payable to the Government would come within the meaning of the expression operational debt under Section 5(21), making the Government an operational creditor in terms of Section 5(20). The moment the dues to the Government are crystallised and what remains is only payment, the claim of the Government will have to be adjudicated and paid only in a manner prescribed in the resolution plan as appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interim resolution professional in taking control and custody of an asset over which the corporate debtor has ownership rights, subject to the determination of ownership by a court or other authority. In fact an asset owned by a third party, but which is in the possession of the corporate debtor under contractual arrangements, is specifically kept out of the definition of the term assets under the Explanation to Section 18. This assumes significance in view of the language used in Sections 18 and 25 in contrast to the language employed in Section 20. Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word assets , while Section 20(1) uses the word property together with the word value . Sections 18 and 25 do not use the expression property . Another important aspect is that under Section 25 (2) (b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en it takes control and custody of any asset over which Corporate Debtor has ownership rights as recorded in the balance-sheet of the Corporate Debtor, it can include asset regarding which there may be a dispute pending regarding ownership in a court of law. Such issue of Ownership only a Civil Court can decide. Under Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons, Regulations 2016) (CIRP Regulations in short) Regulation 36(h) requires that information memorandum required to be issued by Resolution Professional shall contain details of all material litigation and an ongoing investigation or proceeding initiated by Government and statutory authorities; . 21. The Government has amended Section 11 of IBC by adding additional explanation as per Insolvency and Bankruptcy Code Amendment Act, 2020 published on 13.03.2020. Section 11 of IBC relates to persons who are not entitled to make application. Explanation 2 was added to clarify that nothing in the Section shall prevent a Corporate Debtor referred to in clause (a) to (d) of the Section from initiating Corporate Insolvency Resolution Process against another Corporate Debtor. The con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the matter of Manish Kumar (Supra) the other Section, constitutional validity of which was challenged is Section 32A of IBC. Section 32A reads as under: Section 32A inserted through the impugned amendment reads as follows: 32A. (1) Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not- (a) a promoter or in the management or control of the corporate debtor or a related party of such a person; or (b) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action against the property of any person, other than the corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under this Code and fulfils the requirements specified in this section, against whom such an action may be taken under such law as may be applicable. (3) Subject to the provisions contained in sub-sections (1) and (2), and notwithstanding the immunity given in 9 this section, the corporate debtor and any person who may be required to provide assistance under such law as may be applicable to such corporate debtor or person, shall extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process. 23 (B). When the constitutional validity was challenged, Union of India defended these provisions (Please see Para 271 of the Judgment in Manish Kumar) by submitting that: The stand of the Union, on the other hand, is as follows: Section 32A provides immunity to the corporate debtor and its property when there is approval of the resolution plan resulting in the change of management of control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the such liability, the Committee noted that in the long run, potential resolution applicants could be disincentivised from proposing a resolution plan. The Committee was also concerned that resolution plans could be priced lower on an average, even where the corporate debtor did not commit any offence and was not subject to investigation, due to adverse selection by resolution applicants who might be apprehensive that they might be held liable for offences that they have not been able to detect due to information asymmetry. Thus, the threat of liability falling on bona fide persons who acquire the legal entity, could substantially lower the chances of its successful takeover by potential resolution applicants. 17.4. This could have substantially hampered the Code s goal of value maximisation, and lowered recoveries to creditors, including financial institutions who take recourse to the Code for resolution of the NPAs on their balance sheet. At the same time, the Committee was also conscious that authorities are duty bound to penalize the commission of any offence, especially in cases involving substantial public interest. Thus, two competing concerns need to be balanced. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been involved in the commission of such criminal offence. 17.11. By way of abundant caution, the Committee also recognised and agreed that in all such cases where the resolution plan is approved, or where the assets of the corporate debtor are sold under liquidation, such approved resolution plan or liquidation sale of the assets of the corporate debtor s assets would have to result in a change in control of the corporate debtor to a person who was not a related party of the corporate debtor at the time of commission of the offence, and was not involved in the commission of such criminal offence along with the corporate debtor . 24. This Section also puts responsibility on the Corporate Debtor and bona fide purchaser to co-operate in investigation. In Paragraphs 279 to 280 of the Judgment in the matter of Manish Kumar Hon ble Supreme Court observed in the above context as under: 279. The contentions of the petitioners appear to be that this provision is constitutionally anathema as it confers an undeserved immunity for the property which would be acquired with the proceeds of a crime. The provisions of the Prevention of Money-Laundering Act, 2002 (for short, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Professional subject undoubtedly to the control by the Committee of Creditors. As far as protection afforded to the property is concerned there is clearly a rationale behind it. Having regard to the object of the statute we hardly see any manifest arbitrariness in the provision. Thus constitutional validity of Section 32A has been upheld. 34. In that matter, we discarded the argument that Section 32A of the Code was not helpful in that matter as case had not reached the stage of acceptance of Resolution Plan or had not reached stage of liquidation. In the present matter, the argument that unless liquidation takes place, protection of Section 32A cannot be invoked is not well founded. Unless property becomes available and is subjected to the Liquidation Process under Chapter III Part II of the IBC, the applicability or inapplicability of Section 32A cannot be claimed. As per Chapter III, the Liquidator is duty bound under Section 35 to take into custody or control all the assets, property, effects and actionable claims of the Corporate Debtor. Explanation below sub-section (2) of Section 32A makes it clear that no action shall be taken against the property of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any legal right or beneficial interest therein thus the moment CIRP is initiated, the property of the Corporate Debtor is protected by such moratorium. Thus both provisions seek to protect the property of Corporate Debtor from transfer etc. till further actions take place. (B). Under Section 17 of IBC from the date of appointment of the IRP, he has to manage the affairs of the Corporate Debtor which shall vest in IRP and the powers of directors or partners of the Corporate Debtor as the case may be, stand suspended and are to be exercised by the IRP. (C). Under Section 18 (1) (f), the IRP is required under the laws of IBC to take control and custody of any assets corporate debtor has ownership rights as recorded in balance sheet of the Corporate Debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets. The further sub-clauses give particulars of properties to be taken over. The explanation provides as to which assets shall not be included. (D). Then under Section 20 of IBC, there is responsibility of IRP to make every endeavour to protect and preserve the value of the property of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the asset, valued in accordance with regulation 35. Under Regulation 35, the Liquidator can adopt valuation under Section 35 of CIRP, Regulation but if Liquidation is of opinion that fresh valuation is required under the circumstance, he shall within 7 days of the liquidation commencement date, appoint two registered valuers to determine the realisable value of the assets or businesses under clauses (a) to (f) of regulation 32 of the Corporate Debtor. 32. Regulation 40A of CIRP, Regulations and Regulation 47 of Liquidation Regulations give model timelines. 33. Once CIRP starts, there may be a contingency of the admission order getting set aside in Appeal. There may be another contingency where under Section 12A of IBC withdrawal of the Application admitted under Section 7, 9 or 10 takes place. Apart from these two contingencies, the CIRP is bound to end into either in Resolution Plan getting accepted or the Corporate Debtor going into liquidation. These two contingencies are taken care of by Section 32 A which has been recently added in IBC. If the first two contingencies happen, the normal laws would naturally get attracted as there would be a reversal to management goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA. Thus, there is demarcation with regard to the attachment of property done under Section 5 of PMLA which is to be adjudicated under Section 8 before the Adjudicating Authority who has to deal with confirmation of attachment under Section 8 (3) of PMLA. On confirmation, the attachment continues during investigation for a period not exceeding 365 days or pendency of the proceedings relating to the offence under PMLA before a Court or under the corresponding law of any other country or before the Competent Court of any jurisdiction outside India as the case may be. The attachment confirmed by Adjudicating Authority becomes final after an order of confiscation passed under sub-section 5 or sub-section 7 of Section 8 or Section 58B or sub-section (2-A) of Section 60 by the special Court. It appears that because of such demarcations, the Government stated before the Hon ble Supreme Court of India that the functions as regards the Adjudicating Authority are civil in nature to the extent that it does not decide on the criminality of the offence nor does it has power to impose penalty or impose punishment. 39. Taking aid from this, it appears to us that after the attachment when mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies has been found. Considering this as well as the nature of proceedings that takes place before the Adjudicating Authority under PMLA, it appears to us that even if the Authority issues order of provisional attachment, the institution and continuation of proceedings before the Adjudicating Authority for confirmation would be hit by Section 14 of IBC. 41. Alternatively, even if for any reason it was to be held that Section 14 of IBC would not help, it appears to us that Section 238 of IBC would still apply. Although it is argued that PMLA is a special statute and has an overriding effect still Section 238 of IBC is also a special statute and which is subsequent statute. IBC has specific object, which is to consolidate and amend laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximization of value of assets of such persons and to promote entrepreneurship, availability of credit and balance the interest of all stakeholders including alteration in the order of priority of payment of Government dues. Section 238 of IBC reads as under: 238. The provisions of this Code shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our view, there is no conflict between PMLA and IBC and even if a property has been attached in the PMLA which is belonging to the Corporate Debtor, if CIRP is initiated, the property should become available to fulfil objects of IBC till a resolution takes place or sale of liquidation asset occurs in terms of Section 32A. 38. In the present matter also, if the MPID Act is seen, Section 7(5) makes it clear that when dealing with the attachment of property, the procedure to be followed by the designated court is as per the Code of Civil Procedure. In the subsequent part of the Act while dealing with offence (as per Section 3 of the PMLA), the procedure for taking cognizance of offence is given in Section 13 and provisions of CrPC as applicable for warrant trial cases is applied. There is similarity on these broad aspects between PMLA and MPID. Thus, for attachment under the MPID Act, Section 14 of the IBC dealing with Moratorium would apply and the provisions dealing with powers of IRP, RP and duty to take into custody and control the assets of the Corporate Debtor would be enforceable. At stage of liquidation, liquidator would be duty bound to take control of assets of Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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