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TMI Blog2022 (11) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the Insolvency and Bankruptcy Board of India or to the Central Government to consider as to whether the case is made out for filing a complaint before the Special Court. The observations of the Adjudicating Authority is not approved to the extent that the Adjudicating Authority has no role in implementing the penal provisions in the Code. Limited role which can be performed by the Adjudicating Authority is to make a reference if there are allegations which need consideration by IBBI or Central Government for purpose of filing a complaint. In the facts of the present case where the Adjudicating Authority has found that there was pre-existing dispute between the parties and Application under Section 9 was not liable to be admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Operational Creditor under Section 9 before the Adjudicating Authority, an Order was passed on 2nd August, 2022 rejecting Section 9 Application, which Order, the Operational Creditor has challenged and filed Appeal i.e. Company Appeal (AT) Ins. No. 1315 of 2022 which has been dismissed by us vide Judgement of the date. 4. Learned Counsel for the Appellant submits that the Adjudicating Authority committed error in rejecting the Application under Section 65 and 76 of the Code taking view that Special Court established under IBC is alone competent to entertain Criminal Proceedings in respect of offence punishable under the provisions of the Code and the Adjudicating Authority has no role in implementing the penal provisions under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Insolvency and Bankruptcy Board of India or the Central Government or any person authorized by the Central Government in this behalf. 47. Normally, the Insolvency and Bankruptcy Board of India or the Central Government are not made a party respondent to any of the Corporate Insolvency Resolution Process . Therefore, they can not have any idea as to whether any offence has been committed by any Corporate Debtor or its members, including Successful Resolution Applicant ( Corporate Debtor ) under Section 74(3) or any of the provisions of Chapter VII of part II of the I B Code . 48. In this background, we are of the view that it is the Adjudicating Authority who is required to refer such matter to the Insolvency and Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us transaction in nature hence petition under Section 65 was rejected. 10. In the facts of the present case where the Adjudicating Authority has found that there was pre-existing dispute between the parties and Application under Section 9 was not liable to be admitted which Order has been confirmed by us by Judgment/Order dated 11.11.2022 in Company Appeal (AT) Ins. No. 1315 of 2022, we see no reason to issue any direction to the Adjudicating Authority at this stage to consider making a reference to the Board or Central Government for prosecution under Section 76. The matter needs to rest here. 11. In result, with the observations and clarification as made above, this Appeal is disposed of. - - TaxTMI - TMITax - Insolvency & Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
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