TaxTMI 
TaxTMI 
2024 (2) TMI 678
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....ued to IBBI, RBI and IBA to work in tandem and develop a framework or set of guidelines to ensure effective monitoring and functioning of the Committee of Creditors wherein some measure of recourse against CoC may be made available to other stakeholders in the insolvency process in cases of negligence by the CoC; (b) A Writ of Mandamus and/ or any other Writ, order and /or direction in the nature thereof may kindly be issued in the matter, thereby quashing all the proceedings initiated by the Respondents under Section 19 of the RDDBFI Act, 1993 against the Petitioner by Respondent No. 1 to 6 before the Hon'ble DRT for recovery through personal guarantees; (c) A Writ of Mandamus and/ or any other Writ, order and/or direction in the nature thereof may kindly be issued in the matter, thereby barring initiation of any proceedings by the Respondents under the RDDBFI Act 1993 or IBC 2016, against the Petitioner; (d) A Writ of Mandamus and/ or any other Writ, order and/or direction in the nature thereof may kindly be issued in the matter, thereby ordering that the name of the Petitioner be expunged from the proceedings initiated by the Respondents No. 1 for reco....
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....edings ["CIRP"] in 2018, an Interim Resolution Professional ["IRP"] was appointed. According to him, the value of the Company's assets diminished considerably during the period they were in the custody of the Committee of Creditors ["CoC"] and/or the IRP. To this extent, Mr. Nandrajog's submission [which is disputed by learned counsel appearing for the respondents on advance notice] is that the petitioner would have had no recourse to any other authority, including the National Company Law Tribunal ["NCLT"], at that stage. Although the framing of the guidelines contemplated by prayer (a) appears prima facie to be in the realm of a policy decision, the respondents are directed to place on record the mechanism in place with regard to any grievances regarding the functioning of the CoC or the IRP. 5. As far as prayers (b), (c) and (d) are concerned, they relate to proceedings initiated against the petitioner in respect of personal guarantees issued by him. No orders have yet been passed by the Debts Recovery Tribunal in this regard. If any such orders are passed, the petitioner will have the remedy of appeal to the Debt Recovery Appellate Tribunal. No relief of the nature con....
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....cy Board of India (hereinafter 'IBBI') against respondents-12 & 13. 9. It is, therefore, submitted by learned senior counsel that the present matter is a startling case and a glaring example of misuse of power/non-exercise of power by the CoC, causing immense prejudice to the petitioner. He, therefore, submitted that appropriate mechanisms should be made available for raising grievances against the conduct of the CoC for the effective implementation of the provisions of the IBC. 10. Learned senior counsel also submitted that, to a great extent, the grievance raised by the petitioner in the instant petition has been supported by the stand of respondent 14-IBBI. Learned senior counsel have extensively read over the discussion paper, annexed with the reply of respondent 14-IBBI and they submitted that there are grey areas which ought to be filled up and should not be left to the discretion of the CoC merely because of the reason that the CoC happens to be the best judge to take commercial decision with respect to the Corporate Debtor. He submitted that merely on the ground that the commercial wisdom of the CoC is unassailable, the constitutional court is not bereft of the power ....
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....f money as compared to the original valuation, would not advance the petitioner's case as the petitioner was himself responsible for the devaluation. During the pendency of CIRP, the petitioner filed numerous suits before different forums which led to further deterioration in the valuation of the company. 16. He submitted that during the CIRP of the Corporate Debtor, the petitioner attempted to claim the ownership of the brand name 'SU- KAM' i.e., one of the most valuable assets of the Corporate Debtor and the substratum of the business of the Corporate Debtor, by including the brand in his net worth certificate submitted along with the Expression of Interest (hereinafter 'EOI'). 17. He submitted that due to the aforesaid attempts of the petitioner to usurp the brand name of the Corporate Debtor, the Resolution Professional was unable to get prospective resolution applications. Accordingly, in October 2018, the Resolution Professional was constrained to approach this court to protect and preserve the most valuable asset of the Corporate Debtor and this court vide order dated 30.10.2019 in C.S. (Comm.) No. 1155/2018 permanently restrained the petitioner from using the brand na....
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....kruptcy Board of India (hereinafter 'IBBI') submits that IBC offers a uniform, comprehensive insolvency legislation encompassing all companies, partnerships and individuals. One of the fundamental features of the Code is that it allows creditors to assess the viability of a debtor as a business decision and agree upon a plan for its revival or a speedy liquidation. The Code creates a new institutional framework, consisting of a regulator, insolvency professionals, information utilities and adjudicatory mechanisms which facilitate a formal and time-bound insolvency resolution process and liquidation. The Resolution Professional identifies the financial creditors and constitutes a CoC. Operational creditors above a certain threshold are allowed to attend meetings of the CoC but do not have voting power. Most of the decisions of the CoC require 66% majority of votes. Decisions of the CoC are binding on the Corporate Debtor and all its creditors. The CoC considers proposals for the revival of the debtor and must decide whether to proceed with a revival plan or liquidation within a period of 180 days (subject to a one-time extension of 90 days). 24. He further submitted that Section ....
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....he Corporate Debtor. At this meeting, the CoC was also informed by the Resolution Professional that since no compliant resolution plan had been received, the Resolution Professional would be filing an application seeking liquidation of the Corporate Debtor before the Adjudicating Authority on or at the expiry of the Corporate Debtor's CIRP. Accordingly, in view of the absence of any compliant resolution plan, the Resolution Professional filed an application seeking for the liquidation of the Corporate Debtor under Section 33(1)(a) of the IBC before the Adjudicating Authority on 27.03.2019 and the Adjudicating Authority approved the liquidation of the Corporate Debtor. 29. It is pertinent to note that this court vide order dated 20.09.2021 has prima facie held that what remains to be adjudicated is only with respect to the prayer (a) of the instant writ petition, as already reproduced above. 30. Before embarking on the moot question, this court finds it appropriate to go down the memory lane and understand the fundamental features of the Insolvency and Bankruptcy Code, 2016. Considering the compelling need for a robust insolvency regime, the IBC is enacted with the objective t....
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.... High Courts on BIFR cases, the DRTs and DRATs, as well as a review of important judgments of the Supreme Court that have had a significant impact on the interpretation of existing insolvency legislation. The judgments reviewed are those after June 2002 when the SARFAESI Act came into effect. It is illustrative of both debtor and creditor led process of corporate insolvency, and reveals a matrix of fragmented and contrary outcomes, rather than coherent and consistent, being set as precedents. In such an environment of legislative and judicial uncertainty, the outcomes on insolvency and bankruptcy are poor. World Bank (2014) reports that the average time to resolve insolvency is four years in India, compared to 0.8 years in Singapore and 1 year in London. Sengupta and Sharma, 2015 compare the number of new cases that file for corporate insolvency in the U.K., which has a robust insolvency law, to the status of cases registered at the BIFR under SICA, 1985, as well as those filed for liquidation under Companies Act, 1956. They compare this with the number of cases files in the UK, and find a significantly higher turnover in the cases that are filed and cleared through the in....
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....alization can generally be obtained if the firm is sold as a going concern. Hence, when delays induce liquidation, there is value destruction. Further, even in liquidation, the realization is lower when there are delays. Hence, delays cause value destruction. Thus, achieving a high recovery rate is primarily about identifying and combating the sources of delay. This same idea is found in FSLRC's (Financial Sector Legislative Reforms Commission) treatment of the failure of financial firms. The most important objective in designing a legal framework for dealing with firm failure is the need for speed. [Emphasis supplied] 32. At this stage, it is also crucial to point out that while placing the Code before the Parliament, the then Finance Minister, laid emphasis on the fundamental objective that the Code strives to achieve and stated that:- "SHRI ARUN JAITLEY: One of the differences between your Chapter 11 and this is that in Chapter 11, the debtor continues to be in possession. Here the creditors will be in possession. Now, the SICA is being phased out, and I will tell you one of the reasons why SICA didn't function. Under SICA, the predominant experi....
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.... and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto." 35. Thus, the epilogue of the legislation i.e., Preamble of the Code clearly elucidates that the intention of the legislature was always to set free the Corporate Debtor from the clutches of the debt trap and at the same time, without causing prejudice to the interests of all other stakeholders like financial creditors, operational creditors etc. Reliance can also be placed upon the decision of the Hon'ble Supreme Court in the case of Arcelor Mittal (India) (P) Ltd. v. Satish Kumar Gupta (2019) 2 SCC 1., wherein, the Hon'ble Supreme Court emphasized on the importance of the maximisation of the assets of the Corporate Debtor as compared to driving the Corporate Debtor into the liquida....
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....f the legislation and observed as under:- "12. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor's assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate t....
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.... (P) Ltd. v. Satish Kumar Gupta : (2019) 2 SCC 1] 28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests....." [Emphasis supplied] 38. Thus, from the foregoing discussion, it is crystal clear that the sacrosanct intention behind this Code is to revive the Corporate Debtor from the shackles of the debt trap by protecting the Corporate Debtor from its own management and from a corporate death by liquidation. Scheme of IBC 39. In view of the legislative intent behind this Code, at this juncture, it is pertinent to understand the scheme of the IBC, which is divided into different parts. Part I o....
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.... (2) The committee of creditors shall comprise all financial creditors of the corporate debtor: Provided that a [financial creditor or the authorised representative of the financial creditor referred to in sub-section (6) or sub-section (6A) or sub-section (5) of section 24, if it is a related party of the corporate debtor,] shall not have any right of representation, participation or voting in a meeting of the committee of creditors: [Provided further that the first proviso shall not apply to a financial creditor, regulated by a financial sector regulator, if it is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares [or completion of such transactions as may be prescribed], prior to the insolvency commencement date.] (3) [Subject to sub-sections (6) and (6A), where] the corporate debtor owes financial debts to two or more financial creditors as part of a consortium or agreement, each such financial creditor shall be part of the committee of creditors and their voting share shall be determined on the basis of the financial debts owed to them. ....
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....ented by a guardian, executor or administrator, such person shall act as authorised representative on behalf of such financial creditors, and such authorised representative under clause (a) or clause (b) or clause (c) shall attend the meetings of the committee of creditors, and vote on behalf of each financial creditor to the extent of his voting share. (6B) The remuneration payable to the authorised representative- under clauses (a) and (c) of sub-section (6A), if any, shall be as per the terms of the financial debt or the relevant documentation; and (ii) under clause (b) of sub-section (6A) shall be as specified which shall be form part of the insolvency resolution process costs.] [(7) The Board may specify the manner of voting and the determining of the voting share in respect of financial debts covered under sub-sections (6) and (6A). (8) Save as otherwise provided in this Code, all decisions of the committee of creditors shall be taken by a vote of not less than fifty-one per cent. of voting share of the financial creditors: Provided that where a corporate debtor does not have any financial creditors, the committee of creditors shall be cons....
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....is determined on the basis of financial debt owed to it. It is also clear from Section 30(4) as also Section 28(3) that the major decisions of approval are to be taken by the Committee of Creditors by a vote of at least 66% of the voting share of the financial creditors and not by a simple majority. The reasons and purpose for assigning such a unique and decisive role in corporate insolvency resolution to the Committee of Creditors and for that matter, to a substantial block of not less than 2/3 of voting share of the financial creditors, were extensively delineated in the report of the Bankruptcy Law Reforms Committee of November 2015 while remarking on the essential theme that the'appropriate disposition of a defaulting firm is a business decision, and only the creditors should make it". 97.2. In K. Sashidhar, while setting out the relevant extracts from the said Report, this Court exposited on the primacy of the commercial wisdom of the Committee of Creditors in the corporate insolvency resolution process in the following terms : (SCC pp. 183- 84, paras 52-53) "52. As aforesaid, upon receipt of a'rejected" resolution plan the adjudicating authority (NC....
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....take the firm into liquidation. Another possibility is to negotiate a debt restructuring, where the creditors accept a reduction of debt on an NPV basis, and hope that the negotiated value exceeds the liquidation value. Another possibility is to sell the firm as a going concern and use the proceeds to pay creditors. Many hybrid structures of these broad categories can be envisioned. The Committee believes that there is only one correct forum for evaluating such possibilities, and making a decision : a creditors committee, where all financial creditors have votes in proportion to the magnitude of debt that they hold. In the past, laws in India have brought arms of the Government (legislature, executive or judiciary) into this question. This has been strictly avoided by the Committee. The appropriate disposition of a defaulting firm is a business decision, and only the creditors should make it." 97.3. In Essar Steel, a three-Judge Bench of this Court surveyed almost all the relevant provisions concerning corporate insolvency resolution process; and, as noticed above, explained the assignments of different role players in this process. In that context, this Court aga....
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....the provisions of the Code and the Regulations outline in detail the importance of setting up of such Committee, and leaving decisions to be made by the requisite majority of the members of the aforesaid Committee in its discretion. ... *** 59. Even though it is the resolution professional who is to run the business of the corporate debtor as a going concern during the intermediate period, yet, such resolution professional cannot take certain decisions relating to management of the corporate debtor without the prior approval of at least 66% of the votes of the Committee of Creditors.... 60. Thus, it is clear that since corporate resolution is ultimately in the hands of the majority vote of the Committee of Creditors, nothing can be done qua the management of the corporate debtor by the resolution professional which impacts major decisions to be made in the interregnum between the taking over of management of the corporate debtor and corporate resolution by the acceptance of a resolution plan by the requisite majority of the Committee of Creditors. Most importantly, under Section 30(4), the Committee of Creditors may approve a resolution plan by a....
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....s in terms of the existing liabilities. In other words, the decision as to whether the Corporate Debtor be resurrected or not, by acceptance of a particular resolution plan, is essentially a business decision and hence, is left to the committee consisting of the financial creditors i.e., the CoC but, with the requirement that the resolution plan, for its approval, ought to muster not less than 66% votes of the voting share of the financial creditors. 47. At this point, it is pertinent to make a reference to the decision in the case of Kalpraj Dharamshi and Anr. v. Kotak Investment Advisors Ltd. & Anr. (2021) 10 SCC 401., wherein, the Hon'ble Supreme Court once again emphasized on the importance of the 'commercial wisdom' of the CoC and upheld the sanctity of the CoC while recognising the legislative intent of the Code. Paragraph no. 142 of the said decision is reproduced hereunder:- "142. This Court has held, that it is not open to the Adjudicating Authority or Appellate Authority to reckon any other factor other than specified in Sections 30(2) or 61(3) of the I&B Code. It has further been held, that the commercial wisdom of CoC has been given paramount status without ....
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....puted factual position that no objection was raised by any quarter with regard to any deficiency/irregularity, either by the resolution professional or the appellant or the committee of creditors, in finally approving the resolution plan which was sent to the Adjudicating Authority-National Company Law Tribunal for approval. Further, the statutory requirement of the resolution professional involving two approved valuers for giving reports apropos fair market value and liquidation value was duly complied with and the figures in both reports were not at great variance. Significantly, the same were then put up before the committee of creditors, which is the decision-maker and in the driver's seat, so to say, of the corporate debtor. K. Sashidhar v. Indian Overseas Bank [(2019) 213 Comp Cas 356 (SC); (2019) 12 SCC 150.] and Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta [(2020) 219 Comp Cas 97 (SC); (2020) 8 SCC 531.] are clear authorities that the committee of creditors's decision is not to be subjected to unnecessary judicial scrutiny and intervention. This came to be reiterated in Maharashtra Seamless Ltd. v. Padmanabhan Venkatesh [(2020) 9 Comp Cas-OL 683 (S....
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.... under the IBC is duly regulated by a legal regime, constituting the Code and extant rules. In a system committed to the rule of law, CoC, which is a pivotal body under the regime of CIRP, cannot be devoid of any code of conduct for its functioning and discharging obligations under the provisions of the Code. 53. The demand for an extensive code of conduct for the CoC has been time and again raised by various concerned stakeholders. It is pertinent to mention that the Insolvency Law Committee in its report dated 20th February, 2020 has also recommended a standard code of conduct for the functioning of the CoC. The relevant extracts of the report is reproduced herein for reference:- "12.3. However, given the importance of the CoC in the scheme of the CIRP, the Committee agreed that institutional financial creditors should take necessary steps to ensure that their representatives are capable of discharging their duties in a timely and efficient manner. In this regard, the Committee took the view that: ● Financial institutions should build strong verticals for stressed asset management, with personnel that has adequate training and expertise. Mechanisms for ....
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....solvency professional agencies and IBBI, to pursue any relief against insolvency professionals." 54. Regulation 17(1A) of the CIRP Regulations, 2021 also provided that the members of the CoC are bound by the provisions of the Code and shall discharge the functions in compliance with the said CIRP regulations. The Regulation 17(1A) is reproduced herein:- "The committee and members of the committee shall discharge functions and exercise powers under the Code and these regulations in respect of corporate insolvency resolution process in compliance with the guidelines as may be issued by the Board." 55. Also, considering the need for an effective code of conduct for CoC members, the Insolvency Law Committee in its report dated 20th May, 2022 has again raised the said issue. The committee, inter alia, recommended that:- "2.62. The Committee took note of the above and discussed that the recommendations made in its last report have not resulted in a change in the conduct of financial creditors in the CoC. It felt that since the CoC drives the CIRP and is given wide powers to utilise its commercial wisdom, such powers should be balanced with adequate accountability.....
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....CoC muchless to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. ........ Besides, the commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I&B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject matter expressed by them after due deliberations in the CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the'commercial wisdom" of the individual financial creditors or their collective decision before the adjudicating authority. That is made non-justiciable. 39. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commerci....
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.... the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. ... In another, it is taking into consideration extraneous matters.'it must be proved to be unreasonable in the sense that the court considers it a decision that no reasonable body can. It is not what the court considers unreasonable." 59. Placing further reliance on All India Railway Recruitment Board v. K. Shyam Kumar (2010) 6 SCC 614, wherein, the Hon'ble Supreme Court observed as under:- "36. Wednesbury principle applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by ....
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....ndian jurisprudence to look for the effective delivery of the responsibility of the institutions under the insolvency regime. It is pertinent to look at the insolvency regime in the United Kingdom (UK) which is extensively covered by the Insolvency Act, 1986 and Enterprise Act, 2002. In the UK, insolvency is governed by the administration procedure which is to provide a company, limited liability partnership or partnership with a breathing space to allow a rescue package or more advantageous realisation of assets to be put in place. The aim of administration proceedings is to rescue and rehabilitate insolvent but potentially viable companies. An Administrator is a person or persons appointed under Schedule B1 of the Insolvency Act, 1986 to manage the company's affairs, business and property. On appointment, an Administrator becomes an officer of the court. The Administrator must generally perform his/her functions in the interests of the creditors as a whole. The Administrator is duty bound to follow the Statements of Insolvency Practice (SIP) which is a set of guidance notes issued to insolvency practitioners with a view to maintain standards by setting out required practice and h....
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....m to take any other assignment for a period of one year. Subsequently, when the petitioner raised the grievance against respondent-13, the Disciplinary Committee of respondent-IBBI vide its order dated 13.06.2023 addressed the grievance and held that respondent-13 contravened provisions of the Code in respect of incurring unreasonable cost during liquidation and barred him to work as an insolvency professional for a period of two years. Thus, it is crystallised that majority of the grievances raised by the petitioner have already been addressed by the appropriate forums available to him. 65. Furthermore, it is pertinent to refer to Section 63 of the Code which excludes the jurisdiction of any civil court with respect to a matter where the Adjudicating Authority would have jurisdiction. Section 63 of the Code is reproduced herein for the reference - "63. No civil court or authority shall have jurisdiction to entertain any suit or proceedings in respect of any matter on which the National Company Law Tribunal or the National Company Law Appellate Tribunal has jurisdiction under this Code. Civil court not to have jurisdiction." 66. Thus, the Adjudicating Authority has t....
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....r of rhetoric but is denoting a well-considered decision by the protagonist of CIRP i.e. CoC. As observed by this Court in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222], the financial creditors forming CoC'act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decision." This Court also observed in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] that'[t]here is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan." [Emphasis supplied] 70. It is relevant to point out that the CoC is entrusted with fiduciary duties as per the legislative mandate of the IBC. The functions entrusted to the CoC are wide in nature and in order to effectively deliver the duties entrusted upon it, a code of conduct is of pertinent value. 71. It is widely said that, 'with great powe....
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....f the principles of natural justice was duly acknowledged by the court. It was observed that the principles of natural justice have an application not only on administrative action, but also on judicial and quasi-judicial action. Paragraph no. 63 of the said decision in this regard reads as under:- "63. The principles of natural justice have also been expanded to require that a reasoned order be passed against an individual who is liable to be affected. Though, at one stage, in the evolution of law, a distinction was sought to be drawn between administrative action, on one hand, and judicial or quasi-judicial, on the other, as the law has progressed, that distinction has been substantially watered down, if not obliterated. In other words, the requirement to observe the principles of natural justice arises both in the context of purely judicial or quasi-judicial action as well as administrative action which has an adverse impact on the individual or entity against which action is initiated." 75. Further, it was held that the principles of natural justice cannot be applied in a straight-jacket manner and the extent of application is to be seen in specific circumstances of....
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....he power to enact legislation is a plenary constitutional power which is vested in Parliament and the State Legislatures under Articles 245 and 246 of the Constitution. The legislature as the repository of the sovereign legislative power is vested with the authority to determine whether a law should be enacted. The doctrine of separation of powers entrusts to the court the constitutional function of deciding upon the validity of a law enacted by the legislature, where a challenge is brought before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law should be enacted. Whether a provision of law as enacted subserves the object of the law or should be amended is a matter of legislative policy. The court cannot direct the legislature either to enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of the legislature..." 78. Referen....
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....s issued hereunder; (h) call for any information and records from the insolvency professional agencies, insolvency professionals and information utilities; (i) publish such information, data, research studies and other information as may be specified by regulations; (j) specify by regulations the manner of collecting and storing data by the information utilities and for providing access to such data; (k) collect and maintain records relating to insolvency and bankruptcy cases and disseminate information relating to such cases; (l) constitute such committees as may be required including in particular the committees laid down in section 197; (m) promote transparency and best practices in its governance; (n) maintain websites and such other universally accessible repositories of electronic information as may be necessary; (o) enter into memorandum of understanding with any other statutory authorities; (p) issue necessary guidelines to the insolvency professional agencies, insolvency professionals and information utilities; (q) specify mechanism for redressal of grievances against insolvency profe....
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....the insolvency professionals may be expelled from the membership of insolvency professional agencies; (k) the quantum of fee and the manner of collecting fee for inducting persons as its members; (l) the procedure for enrolment of persons as members of insolvency professional agency; (m) the manner of conducting examination for enrolment of insolvency professionals; (n) the manner of monitoring and reviewing the working of insolvency professional who are members; (o) the duties and other activities to be performed by members; (p) the manner of conducting disciplinary proceedings against its members and imposing penalties; (q) the manner of utilising the amount received as penalty imposed against any insolvency professional. (3) Notwithstanding anything contained in any other law for the time being in force, while exercising the powers under this Code, the Board shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: - (i) the discovery and production of books of account and other doc....