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Proper forum to decide question of restitution under the Code is IBBI and not NCLT

December 26, 2019[2019] 112 296 (NCLT - Kolkata)

IBC : If any specific provisions/mechansim exist in IBC, 2016 and/or Regulations made thereunder for redressal of any grievance or any issue involving question of law or facts in relation to liquidation proceeding, then, such mechanism would have to be applied. Such provisions will have to be given effect over residual power given to Tribunal to provide decision on various matters relating to Insolvency resolution or liquidation proceedings. Thus, this jurisdiction is subject to specific provisions of IBC, 2016. In IBC, 2016, roles of Adjudicating Authority, Appellate Authority and IBBI(Insolvency and Bankruptcy Board of India) have been explicitly deigned. There is no overlapping or ambiguity

• Thus, where applicant is aggrieved by functioning of liquidator, specific mechanism for redressal of this exists in section 217 and section 218 of IBC, 2016. Further, regulation 11 of IBBI(Insolvency Professionals) Regulations, 2016 prescribes procedure as to how Disciplinary Committee would function and report to Board in such matters.Once specific provision exists, proper forum to decide question of restitution is IBBI and not Adjudicating Authority.

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