9911796707
TMI Blog2024 (7) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative proceedings but not adjudicating proceedings as per Section 43 of FEMA. Further the proceedings arising in relation to the provisions of Section 13 of FEMA shall not abate by the reason of insolvency of the person liable under that Section. Further, the adjudication proceedings were initiated by way of issuing show cause notice dated 31.03.2017. It is much before the corporate insolvency resolution process. Though the learned Senior Counsel appearing for the petitioner relied upon the judgment of M/s. Commercial Steel Limited [ 2021 (9) TMI 480 - SUPREME COURT ] in respect of maintainability of the writ petition, which held that when the existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution of India. But the writ petition can be entertained in exceptional circumstances where there is a breach of fundamental rights, a violation of principles of natural justice, an excess of jurisdiction or a challenge to the vires of the statute of delegated legislation. But none of the exceptions as stated above is applicable to the petitioner herein, since there is no breach of fundamental right and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a resolution plan for resolving the insolvency of the petitioner company. In response, two companies incorporated under the Laws of India viz., M/s.Khilari Infrastructure Private Limited and M/s. Topnotch Chemicals Private Limited (hereinafter referred to as resolution applicant ) submitted their resolution plan for revival of the petitioner company and the resolution of its insolvency. 4. In pursuant to the approval of the resolution plan by the creditors of the petitioner company, an application in M.A.No.1346 of 2018 was filed by the RP before the NCLT under Section 30(6) r/w, Section 31(1) of the IBC, for approval of the resolution plan and by an order dated 16.04.2019, the resolution plan was approved by the NCLT. It was also approved by the National Company Law Appellate Tribunal (hereinafter referred to as NCLAT ) by an order dated 30.08.2019. The said order was challenged before the Hon'ble Supreme Court of India and the same was also dismissed by an order dated 20.02.2020, thereby confirming the order passed by the NCLAT. 5. As per the resolution plan, the resolution applicant took over the control and management of the erstwhile corporate debtors. The shares of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her letter dated 16.08.2019 informed to the first respondent about the order passed by the NCLT. She had demitted office as RP and thus, she was no longer in charge of the affairs of the company. 6.3. In the meanwhile, on 28.12.2019, the President of India promulgated the Insolvency and Bankruptcy (Amendment) Ordinance, 2019 bringing about certain amendments in the Insolvency and Bankruptcy Code, thereby introduced Section 32A in the IBC, providing immunity to corporate debtors resolved under the IBC for offences committed prior to corporate insolvency resolution process. According to Section 32A of the IBC, notwithstanding anything to the contrary contained in the IBC 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 corporate insolvency resolution process shall cease and the corporate debtor shall not be prosecuted for such an offence from the date of the resolution plan has been approved by the adjudicating authority under Section 31 of the IBC, if the resolution plan results in the change in the management or control of the corporate debtor to a person other than those specified under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months and the customers cancelled the order and the Bill of Entry had to be refiled. Therefore, it was ascertained that the petitioner had cleared only 13 consignments and failed to clear eight consignments and there is no Bill of Entry in respect of two consignments. The second respondent further stated that the petitioner did not have any finances and as such, they could not be cleared the consignments. They unable to sell the material due to drastic change in the price of the said material. Therefore, nine consignments have not been cleared and continue to be lying in the port. 7.2. From the statements recorded from other Directors of proposed purchaser, the first respondent found that though the petitioner company made payments to the overseas suppliers for the goods imported by them, they have not bothered to clear the goods insofar as nine consignments. Therefore, the petitioner company had intentionally imported goods not for the purpose of clearing, but to send foreign exchange out of the country under the guise of importing and trading the goods locally. Therefore, the petitioner had just for the purpose of sending outward remittances, adopted modus operandi of importing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 16(1), 19(1) and 35 of the FEMA. 10. That apart, the petitioner was not granted any immunity from the adjudication proceedings initiated under the provisions of FEMA. Whereas as per the order passed by the NCLT, the company had immunity from regulatory or administrative proceedings but not adjudicating proceedings as per Section 43 of FEMA. Further the proceedings arising in relation to the provisions of Section 13 of FEMA shall not abate by the reason of insolvency of the person liable under that Section. Further, the adjudication proceedings were initiated by way of issuing show cause notice dated 31.03.2017. It is much before the corporate insolvency resolution process. 11. It is relevant to extract the relevant portion of the order passed by the NCLT dated 16.04.2019, under the head of All other liabilities and debts as follows:- Notwithstanding anything else contained herein, all claims on the Company by ANY Governmental Authority for payment of ANY statutory dues or tax, and all liabilities of the Company towards such Governmental Authority, for the period prior to the NCLT Approval Date (including in respect of proceedings referred above), shall stand extinguished purs ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
