A penalty imposed by SEBI during the liquidation can be claimed before Liquidator and can be considered for the purpose of distribution of assets under Section 53 of IBC? – Securities and Exchange Board of India Vs. Mr. Vishal Ghisulal Jain, Liquidator of, Sterling International Enterprises Ltd. – NCLT Mumbai Bench
NCLT Mumbai Bench referred the judgment in Sundaresh Bhatt (2022) ibclaw.in 103 SC and held that:
(i) IRP, RP or Liquidator as the case may be, has an obligation to ensure that the assessment of statutory dues like taxes, fine, penalty etc. is legally completed. Natural corollary to this is, if determination of the statutory dues is allowed during liquidation period then filing of the claim arising out of such determination cannot be barred under IBC otherwise it would amount to empty formality.
(ii) The only restriction the belated claimant has to face is that it cannot disturb the amount already distributed as per waterfall mechanism under Section 53 of the IBC.
(iii) Any creditor who files belated claim has to suffer the consequences that it is entitled to receive the amount only from the left over assets of Corporate Debtor and has no right to disturb the distribution already made.
(iv) The dues arising out of Adjudication Order passed on 17.02.2022 by SEBI which is admittedly after liquidation commencement date i.e. 18.10.2021, can be claimed before Liquidator.
