235A

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 »

Can proceedings under Section 95(1) of IBC against a Personal Guarantor be initiated before NCLT Bench even after getting citizenship of another country/Foreign Country? – Sudip Bijoy Dutta Vs. State Bank of India – NCLAT New Delhi

Following issues arise in the present Appeal:

(i) Whether a Personal Guarantee given by the Appellant by Guarantee Deed dated 19.10.2015 shall extinguish, on Appellant, the Personal Guarantor acquiring citizenship of Singapore w.e.f. 18.06.2018?

(ii) Whether proceedings under Section 95(1) against the Appellant as a Personal Guarantor could not have been initiated by State Bank of India before the NCLT, Kolkata Bench by filing C.P. (IB) No. 54/KB/2021 due to the reason that Appellant has obtained citizenship of Singapore w.e.f. 18.06.2018 and has gone beyond jurisdiction of the Adjudicating Authority to proceed against him under Section 95(1)?

(iii) Whether it was necessary for the Central Government to enter into an agreement as required under Section 234-235 of the Code to enable the Adjudicating Authority to proceed against the Appellant, a Singapore citizen’ under Section 95(1) where the Appellant has executed Guarantee Deed dated 19.10.2015?

Can proceedings under Section 95(1) of IBC against a Personal Guarantor be initiated before NCLT Bench even after getting citizenship of another country/Foreign Country? – Sudip Bijoy Dutta Vs. State Bank of India – NCLAT New Delhi Read Post »

Additional Sessions Judge does not have jurisdiction to entertain the complaint filed by IBBI – Satyanarayan Bankatlal Malu Vs. Insolvency and Bankruptcy Board of India – Bombay High Court

Hon’ble High Court holds that the impugned proceedings have been instituted by the Respondents (Complainant) in the Court of Additional Sessions Judge, were not sustainable for want of jurisdiction. As a consequence order, ‘issue process’ passed by the learned Additional Sessions Judge against the Petitioners, in a complaint by the Respondents/Board was without jurisdiction and therefore not sustainable equally. It is therefore to be held that Special Court “which is to try offences under the I.B. Code is the Special Court established under Section 435(2)(b) of the Companies Act, 2013 which consists of Metropolitan Magistrate or Judicial Magistrate First Class. The Petition is therefore allowed in terms of prayer clause (a).

Additional Sessions Judge does not have jurisdiction to entertain the complaint filed by IBBI – Satyanarayan Bankatlal Malu Vs. Insolvency and Bankruptcy Board of India – Bombay High Court Read Post »

Whether the Adjudicating Authority in exercise of jurisdiction under Section 235A can impose a fine of Rs.20 Lakh as has been imposed by the impugned judgment on the Appellant? – Writer Business Services Pvt. Ltd. & Anr. Vs. Mr. Ashutosh Agrawala RP for Cox & Kings Ltd. – NCLAT New Delhi

Following are the questions which arise for consideration in this Appeal:-

(i) Whether the Adjudicating Authority in exercise of jurisdiction under Section 235A can impose a fine of Rs.20 Lakh as has been imposed by the impugned judgment on the Appellant?

(ii) Whether Record Management Services are critical services within the meaning of Section 14(2A) which should not be terminated during the period of Moratorium and the Adjudicating Authority is right in issuing direction to Appellant to continue to provide Record Management Services during CIRP period?

(iii) Whether Adjudicating Authority has rightly issued direction to the Appellant to refund the amount received from the Resolution Professional after initiation of CIRP?

Whether the Adjudicating Authority in exercise of jurisdiction under Section 235A can impose a fine of Rs.20 Lakh as has been imposed by the impugned judgment on the Appellant? – Writer Business Services Pvt. Ltd. & Anr. Vs. Mr. Ashutosh Agrawala RP for Cox & Kings Ltd. – NCLAT New Delhi Read Post »

Service of Record Management and Record Retrieval to the Resolution Professional are critical in nature – Ratan India Finance Pvt. Ltd Vs. M/s Cox & Kings Ltd. – NCLT Mumbai Bench

NCLT found that the refusal of the Respondent to deny access to the RP to the Business record of the Corporate Debtor is in contrary to Section 18 and 25 of the Code. The Bench notes that the business record of the Company is an indelible right of the Resolution Professional and a contractual duty of the Respondent which it has failed to perform. In view of this the Bench, the Bench is of the views and as pleaded by the Corporate Debtor that the Corporate is entitled for cost incurred by the Respondent under Section 235A of the Code.

Service of Record Management and Record Retrieval to the Resolution Professional are critical in nature – Ratan India Finance Pvt. Ltd Vs. M/s Cox & Kings Ltd. – NCLT Mumbai Bench Read Post »

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