JENY THANKACHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who is a sleeping partner in the 3rd respondent-Limited Liability Partnership Firm, seeks to declare that the provisions of the Insolvency and Bankruptcy Code, 2016 shall have overriding effect over the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, since insolvency resolution and bankruptcy for individuals and Partnership Firms have come into force with effect from 15/11/2019 by virtue of Ext.P3 Notification.

(2.) The petitioner states that he holds 20% share in the 3rd respondent-Limited Liability Partnership as contemplated under Sec. 23(4) of the Limited Liability Partnership Act, 2008. The petitioner submits that by virtue of Ext.P3 Government Order dtd. 15/11/2019, the provisions under Ss. 78, 79 and 94 to 187 of Insolvency and Bankruptcy Code, 2016 (IBC 2016) came into force with effect from 15/11/2019. In order to redress his grievances relating to the partnership, the petitioner initiated insolvency resolution process under Sec. 94 of the IBC 2016 before the adjudicating authority / National Company Law Tribunal, Kochi Bench. According to the petitioner, the NCLT has accepted Ext.P4 application submitted by the petitioner and has assigned Diary No.1386/2023 dtd. 23/8/2023 to the application.

(3.) The petitioner states that he initiated Ext.P4 insolvency proceedings as the 5th respondent-Bank resorted to coercive proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Bank filed Miscellaneous Case No.372/2023 on the files of the Chief Judicial Magistrate, invoking Sec. 14 of the Act, 2002. The petitioner would submit that along with Ext.P5 MC, the 6th respondent has not filed an affidavit in accordance with proviso to the Sec. 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Chief Judicial Magistrate, without ascertaining the maintainability of Ext.P5 MC, has passed Ext.P6 order dtd. 30/6/2022 allowing Ext.P5 MC.