02 (d)

Whether the Monitoring Committee of a Corporate Debtor through its Chairman has the authority under IBC to file CIRP application against other Corporate Debtor – M/s. Educomp Infrastructure & School Management Ltd. Vs. M/s. Millenium Education Foundation – NCLT New Delhi Bench Court-V

The Adjudicating Authority observed that the Applicant, in the present Application, being the Monitoring Professional for M/ s. Educomp Infrastructure & School Management Limited, is covered under the provisions of the Code, by virtue of Section 2(d) of the code which read as; “such other body incorporated under any law for the time being in force, as the Central Government may, by notification, specify in this behalf;”. Here, it can be observed that the Monitoring Committee is formed under the provisions of the Code and the Chairman therein, is also appointed in accordance with the provisions of the Code. Hence, he has proper authority to proceed to take any steps as necessary to protect the interest of the Applicant.

Whether the Monitoring Committee of a Corporate Debtor through its Chairman has the authority under IBC to file CIRP application against other Corporate Debtor – M/s. Educomp Infrastructure & School Management Ltd. Vs. M/s. Millenium Education Foundation – NCLT New Delhi Bench Court-V Read Post »

As per definition of Corporate Person under Section 3(7) of the Code, the Societies cannot be said to be Corporate Persons – Asset Reconstruction Company (India) Ltd. Vs. Mohammadiya Educational Society – NCLAT New Delhi

NCLAT upheld decision of the Adjudicating Authority and held that Section 3(7) defines “corporate person” and even if this definition is considered, the Respondents are not Companies defined in clause 2(20) of the Companies Act, 2013 or “limited liability partnership” as defined under the Limited Liability Partnership Act, 2008 or any other person incorporated with limited liability under any law for the time being in force. Even if the Appellant was to say that the Respondents should be treated as body corporate under Section 18 of the A.P. Act, nothing is shown that Respondents Societies are persons “incorporated” or that the incorporation is with “limited liability”. This has to be further read with Section 2(d) which requires that to apply the Code such other body incorporated under any law for the time being in force needs to be specified by Central Government only then Code would apply to it. Thus, reading Section 2 which prescribes the entities and individuals to which the Code applies when considered with definition of ‘corporate person’ under Section 3(7) of the Code, the Respondents i.e. Societies cannot be said to be ‘corporate persons’ to whom the provisions of the Code applies.(p20-21)

As per definition of Corporate Person under Section 3(7) of the Code, the Societies cannot be said to be Corporate Persons – Asset Reconstruction Company (India) Ltd. Vs. Mohammadiya Educational Society – NCLAT New Delhi Read Post »

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