IBBI

Special Court presided by a Sessions Judge or an Additional Sessions Judge will have jurisdiction to try the complaint under the Code | Any amendment to Section 435 of Companies Act, 2013, after the date on which the IBC came into effect would not have any effect on the provisions of Section 236(1) of the Code | Provision with regard to Special Court under Section 236 is a case of ‘legislation by incorporation’ and not ‘legislation by reference’ – Insolvency and Bankruptcy Board of India (IBBI) Vs. Satyanarayan Bankatlal Malu and Ors. – Supreme Court

In this case, the question before the Hon’ble Supreme Court was whether the Special Court under the Code (Section 236 of IBC) would be as provided under Section 435 of the Companies Act as it existed at the time when the Code came into effect, or it would be as provided under Section 435 of the Companies Act after the 2018 Amendment.

The Hon’ble Court:

(i) Interpreted Section 236 of IBC and Section 435 of Companies Act, 2013 with various amendments.
(ii) Listed distinction between ‘legislation by reference’ and ‘legislation by incorporation’.
(iii) Quashed and set aside the order of Bombay High Court reported in (2022) ibclaw.in 40 HC.

Special Court presided by a Sessions Judge or an Additional Sessions Judge will have jurisdiction to try the complaint under the Code | Any amendment to Section 435 of Companies Act, 2013, after the date on which the IBC came into effect would not have any effect on the provisions of Section 236(1) of the Code | Provision with regard to Special Court under Section 236 is a case of ‘legislation by incorporation’ and not ‘legislation by reference’ – Insolvency and Bankruptcy Board of India (IBBI) Vs. Satyanarayan Bankatlal Malu and Ors. – Supreme Court Read Post »

IBBI has nothing to do with the litigation between two parties i.e. Financial Creditor and Corporate Debtor, in order to challenge CIRP order by which the petition filed u/s 7 of IBC by the Financial Creditor has been dismissed for whatever reasons – Insolvency & Bankruptcy Board of India Vs. GTL Infrastructure & Ors. – NCLAT New Delhi

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IBBI has nothing to do with the litigation between two parties i.e. Financial Creditor and Corporate Debtor, in order to challenge CIRP order by which the petition filed u/s 7 of IBC by the Financial Creditor has been dismissed for whatever reasons – Insolvency & Bankruptcy Board of India Vs. GTL Infrastructure & Ors. – NCLAT New Delhi Read Post »

The jurisdiction to deal with the validity and legality of IBBI Regulations framed under the IBC is not conferred upon the NCLT – Insolvency and Bankruptcy Board of India Vs. State Bank of India & Ors – Delhi High Court

The present writ petition has been filed by the IBBI challenging the impugned order dated 5th September, 2018 passed by the NCLT in which the NCLT has held that Regulation 36A of the CIRP Regulations, 2016 is ultra vires Section 240(1) of the IBC. High Court held that in the present case, a conjoint reading of the provisions of the IBC clearly shows that the NCLT is the adjudicating authority under the IBC. Under Section 60(5) the categories of cases which can be adjudicated have been clearly enumerated. The jurisdiction to deal with the validity and legality of the Regulations framed under the IBC is not conferred upon the NCLT. The NCLT being a creature of the IBC, cannot assume to itself the power of declaring any provisions of the IBC or the Regulations as illegal or ultra vires. This is the clear view even of the NCLAT in M/s Mohan Gems & Jewels Pvt. Ltd. (supra).

The jurisdiction to deal with the validity and legality of IBBI Regulations framed under the IBC is not conferred upon the NCLT – Insolvency and Bankruptcy Board of India Vs. State Bank of India & Ors – Delhi High Court Read Post »

Neither the Code, not the rules framed thereunder confers any power to the Adjudicating Authority to interfere with the process of inspection and investigation initiated by the IBBI, not does it have the power to direct the IBBI to take or not to take actions – Insolvency and Bankruptcy Board of India Vs. Aditya Kumar Proposed IRP of Adjoin Built & Developers Pvt. Ltd – NCLAT New Delhi

NCLAT set aside the impugned order placing reliance on the Judgment of the Hon’ble Supreme Court in the case of K. Sashidhar Vs. Indian Overseas Bank & Ors. [2019] ibclaw.in 08 SC and held that this Appellate Tribunal in the case of Mohan Gems & Jewels Pvt. Ltd. Vs. Vijay Verma & Ors. (2021) ibclaw.in 402 NCLAT and Insolvency and Bankruptcy Board of India Vs. Shri Rishi Prakash Vats & Ors. [2019] ibclaw.in 99 NCLAT, has held similar view, the ratio of which is discussed in the aforenoted paras 9 and 10. Therefore, we are of the considered view that the impugned orders passed by the Adjudicating Authority cannot be sustained in the eye of law.

Neither the Code, not the rules framed thereunder confers any power to the Adjudicating Authority to interfere with the process of inspection and investigation initiated by the IBBI, not does it have the power to direct the IBBI to take or not to take actions – Insolvency and Bankruptcy Board of India Vs. Aditya Kumar Proposed IRP of Adjoin Built & Developers Pvt. Ltd – NCLAT New Delhi Read Post »

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