9911796707
TMI Blog2022 (8) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... at the provisional Attachment dated 01.11.2019 was affirmed on 10.11.2021 by the Competent Authority, under Section 24 (3) of The Benami Transactions (Prohibition) Act, 1988. Also, it is crystalline clear that the Applicant / Appellant cannot embark upon a method to avoid / evade / supplant or circumvent the procedural hierarchy, as envisaged under the The Benami Transactions (Prohibition) Act, 1988, to be fulfilled by an aggrieved / affected person - the ingredients of Section 29 (A) of the The Benami Transactions (Prohibition) Act, 1988 (Amended 2016 by Act 43) deals with the aspect of Benami Transactions. This Tribunal on a careful consideration of divergent contentions, keeping in mind, the entire gamut of the facts and circumstances of the instant case in a conspectus and holistic fashion / manner comes to an inevitable, irresistible and inescapable conclusion that the Applicant in Law is not entitled to prefer an Application before the Adjudicating Authority. Suffice it for this Tribunal to pertinently observe that the said Miscellaneous Application is misconceived one, in the eye of Law, and the same is per se is not maintainable. Application dismissed. - Company App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MA(IBC)/05(CHE)/2020 has become infructuous. Furthermore, from our records, it can be seen that the second prayer sought by the Applicant has been dismissed by this Adjudicating Authority vide daily order dated 25.02.2022. Accordingly, MA(IBC)/05(CHE)/2020 stands Closed. Apart from the above, the Adjudicating Authority (National Company Law Tribunal, Division Bench II, Chennai) in MA(IBC)/543(CHE)/2022 in MA/5/2020 in CP(IB)/768(CHE)/2018) at Paragraph No.2 and 3 had observed the following: - The Counsel for the Liquidator / Applicant has represented that in the common order passed in IA(IBC)/599(CHE)/2021, there is an ambiguity as to how to deal with the attachment of the property. On hearing both sides, the Common Order passed by this Tribunal on 25.04.2022 seems to be very clear that the Liquidator / Applicant herein to proceed under the relevant Section to raise the provisional attachment. Additionally, the Respondent has contended that the properties attached are not the Company s properties and thus the same cannot come under the Liquidation Estate. This Adjudicating Authority does not find any conflict between these two statutes as the Liquidator is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratorium in the Insolvency Bankruptcy Code, 2016, is in force. The plea taken on behalf of the Appellant is that the Insolvency Bankruptcy Code, 2016, being a special enactment, will override The Benami Transactions (Prohibition) Act, 1988 (Amended 2016 by Act 43) . The Learned Counsel for the Appellant also raises an argument that the Adjudication Authority (National Company Law Tribunal, Division Bench II, Chennai) had committed an error in not taking into account of the vital fact that the 1st Respondent acted in contravention of Section 33 (5) of the Insolvency Bankruptcy Code, 2016, to continue with the Legal Proceedings against the Corporate Debtor and its Assets . The Learned Counsel for the Appellant comes out with a stand that the Adjudication Authority (National Company Law Tribunal, Division Bench II, Chennai) had failed to observe that the 1st Respondent s Officials failed to assimilate that shares in the capitals of the Corporate Debtor which is the subject matter of a Benami Transaction can only be the benamidar property and not the immovable property of the Corporate Debtor. To support his contention that the supremacy of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No.(AT)(INS) No.817/2021 in the matter of Kiran Shah-Versus-Enforcement Directorate, Kolkata reported in Manu/NL/005 of 2022 at Paragraph 95, is observed as under:- 95. Although, Section 14 of I B Code deals with moratorium , it is not a hindrance for the Authority and the Officers under the Prevention of Money Laundering Act, 2002 to deny a person of the tainted Proceeds of Crime . Suffice it for this Tribunal to point out that a person who is involved in Money Laundering is not to be allowed to enjoy the fruits of Proceeds of Crime with a view to ward off is Civil indebtedness, in respect of his Creditors. The Learned Counsel for the 1st Respondent proceeds to make a legal submission that in the Judgment of this Tribunal in Comp App No.(AT)(INS) No.817/2021 dated 03.01.2022 between Kiran Shah, Resolution Professional of KSL and Industries Ltd V Enforcement Directorate, Kolkata , the Application under Section 32 (A) of the Insolvency Bankruptcy Code, 2016 was considered, where an Attachment of the Corporate Debtor s asset was effected under the Prevention of Money Laundering Act, 2002 . In the aforesaid Judgment of this Tribunal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly and reasonably and raising an inference of that fact, as per decision of the Hon ble Supreme Court in Jeydayal Poddar V Bibi Hazre reported in 1974 SCC Page 3. It comes to be known that the provisional Attachment dated 01.11.2019 was affirmed on 10.11.2021 by the Competent Authority, under Section 24 (3) of The Benami Transactions (Prohibition) Act, 1988 . Also, it is crystalline clear that the Applicant / Appellant cannot embark upon a method to avoid / evade / supplant or circumvent the procedural hierarchy, as envisaged under the The Benami Transactions (Prohibition) Act, 1988 , to be fulfilled by an aggrieved / affected person. To put it succinctly, the Applicant / Resolution Professional of M/s. Padmaadevi Sugars Ltd. cannot take umbrage under Section 60 (5) of the Insolvency Bankruptcy Code, 2016 etc., in preferring an Application in MA(IBC)/05(CHE)/2020 in CP (IB) No.768(CHE)/2018 before the Adjudication Authority (National Company Law Tribunal, Division Bench II, Chennai), for the latent and patent reason that the procedural wrangle is to be adhered to and followed by the Aggrieved / affected parties which cannot be shaked or shackled with . In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
