On question whether an application to initiate CIRP is maintainable against the Corporate Debtor which is a Government Company, AA held that from the Judgment Hindustan Construction Company [2019] ibclaw.in 21 SC of the Hon’ble Supreme Court, it is observed that a “Government Company” as defined under Section 2(45) of the Companies Act, 2013 is covered under the definition of a “Company” as defined under Section 2(20) of Companies Act 2013. Since the Corporate Debtor, has not been performing any Governmental Functions or the Functions of State, the Corporate Debtor cannot be immune from the IBC proceedings merely on the basis of being a Government Company. Therefore, we find that the present Application is maintainable and worth considering on merits.
Further it held that that the objection taken by the Corporate Debtor that the present Application is not maintainable in view of the Arbitration clause in the Agreements between the Parties and Section 5 of Arbitration and Conciliation Act 1996 bars this Adjudicating Authority from hearing this Application, does not merit consideration since Section 238 of IBC, 2016 is having overriding effect over the Arbitration and Conciliation Act, 1996.