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TMI Blog2024 (7) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... 166/KB/2020 filed by the Appellant as Operational Creditor under Section 9 of the IBC, 2016 (In short 'Code') to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor (M/s Santipara Tea Company Limited) has been dismissed on the ground of limitation. 2. The case set up by the Appellant is that it was engaged in the business of Agrochemicals, Insecticides, Herbicides and Pesticides etc. 3. Pursuant to various purchase orders placed in the year 2012 by the Corporate Debtor, the Appellant supplied the goods and raised invoices upon each delivery. 4. It is alleged that the Corporate Debtor received the goods without any protest about its quality, quantity or branding and against the goods supplied, the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016, in exercise of powers conferred by sub-section (1) of section 16E of the Tea Act, 1953 whereby the Central Government has authorised the Tea Board to take immediate steps to take over the management or the control of Demdima Tea Estate and six other tea gardens as per the provisions of Chapter IIIA of the Tea Act, 1953. He submits that in view of the embargo under subsection (1)(c) of section 16G of the Tea Act, 1953, no proceeding for winding up of the company, being the owner of the tea garden, shall lie before this Court except with the consent of the Central Government. Upon perusing the relevant provision of law, as cited by the learned advocate representing the company, and upon taking into consideration the notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been assessed by the Central Government on the basis of the report of the Tea Board and the State Government of West Bengal and consultations with the stakeholders of tea sector; And whereas, the Central Government is of the considered opinion that the tea gardens as listed below are being managed in a manner highly detrimental to the tea industry and to public interest: (i) Birpara Tea Estate (ii) Garganda Tea Estate (iii) Lankapara Tea Estate （iv)Tulsipara Tea Estate (v) Huntapara Tea Estate (vi) Dhumchipara Tea Estate (vii) Demadima Tea Estate Now, therefore, in exercise of powers conferred by sub-section(1) of section 16E of the Tea Act, 1953 (29 of 1953), the Central Government hereby authorises the Tea Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.03.2015. The period of limitation is three years in terms of Article 137 of the Act, 1963. Winding up petition under Sections 433 and 434 of the Act, 1956 was filed on 19.02.2016 within the period of limitation but before the said petition, a notification came on 28.01.2016 and vide order dated 29.03.2016 the Hon'ble High Court, while disposing of the petition, filed by the Appellant, held that because of the notification dated 28.01.2016, which came prior to the filing of petition under Section 433 and 434 of the Act, 1956 on 19.02.2016, it was necessary for the Appellant to have taken the permission from the Central Government to file the application for winding up, therefore, said petition was disposed of with the liberty to take neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the petition for winding up is not maintainable without the consent of the Central Government and while disposing of winding up petition liberty was granted to the Appellant to take necessary steps in accordance with law. 13. It is argued that neither the consent was taken nor the application under Section 9 was filed though the IBC came into being from 2016 itself. It is submitted that the Appellant cannot take advantage of its own wrong for not taking the consent of the Government for the purpose of winding up petition filed under Section 433 and 434 of the Act, 1956 or for the purpose of filing an application under Section 9 of the Code. It is also submitted that the decision in the case of Duncans Industries Limited (Supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Supra). 17. As we have mentioned in the earlier part of this order, while referring to the facts of this case, that the petition for winding up was disposed of by the Hon'ble High Court vide its order dated 29.03.2016 only on the ground that by virtue of notification dated 28.01.2016 which came prior to the filing of petition under Section 433 and 434 of the Act, 1956 on 19.02.2016, it was required that in order to take any legal action against the Respondent, the consent of the central government was necessary. However, despite the order dated 29.03.2016 in which the liberty was granted to the Appellant to take recourse in accordance with law, no such application was filed by the Appellant to the Central Government for the purpose of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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