MOUSHUMI BHATTACHARYA,J. - (1.) The petitioners in this writ petition are Guarantors and Directors of a company which has been referred under the provisions of The Insolvency and Bankruptcy Code 2016 (IBC). The petitioners have challenged the constitutionality of the Code and have asked for, inter alia, dismissing the application filed under Section 7 of the Code for initiation of the Insolvency Resolution Process by the respondent no. 2 in the National Company Law Tribunal (NCLT). From the prayers as framed in the writ petition, it appears that the petitioners have sought for immediate steps against the respondent no. 3 in connection with the proceedings pending before the NCLT. The respondent no. 3 is the Resolution Professional (RP) appointed by the NCLT in the matter of the insolvency proceeding in relation to Mintri Tea Company Pvt. Ltd. (the company/corporate debtor). The petitioners submit that they have been constrained to challenge the vires of the IBC since the Code does not make any provision for permanent stay of insolvency proceedings when all the outstanding creditors of the corporate debtor have been paid off.
(2.) Mr. Siddhartha Mitra, learned Senior Counsel appearing for the petitioners submits that on an application by Punjab National Bank, being the financial creditor of the company for initiation of corporate insolvency resolution process under the Code, an order was passed by the NCLT on 20th September, 2017 showing that the company was indebted to Punjab National Bank (PNB/the financial creditor) for an amount of Rs. 10,37,69,840.06 as on 31st May, 2017 inclusive of interest as per the relevant financial contract. Counsel further submits that in an application filed by the Resolution Professional, before the NCLT on 9th May, 2018 a specific statement was also made that the dues against the corporate debtor amounted to Rs. 10,37,69,840.06 and that such amount was owed to PNB by the corporate debtor. Counsel submits that the entire dues of the corporate debtors to PNB has since been paid off by the petitioners and that there are no further outstanding amount remaining due and owing to PNB which was the only financial creditor of the company. The dues have admittedly been paid off by way of various installments from December, 2017 to April, 2018. Counsel relies upon a Minutes of proceedings of the Committee of Creditors (CoC) of Mintra Tea Company (the corporate debtor) held on 24th May, 2018 which was attended by the respondent no.3/RP and representatives of PNB and Federal Bank, who claimed to be another financial creditor of the company. The Minutes record that the RP informed the CoC that the entire outstanding dues of the Federal Bank have been cleared and there is no outstanding claim as on date. The Minutes also record that upon such submission being made, the representative of Federal Bank left the meeting.
(3.) It appears from the Minutes that the Committee of Creditors was again reconstituted by the RP excluding the name of the Federal Bank and a list of creditors together with the amount of claim admitted finds place in the Minutes of the proceedings of the COC meeting. From the amount of claim in relation to PNB, only an amount of Rs. 127.74 lacs is mentioned and only the amount of Rs. 10,37,69,840.06 (Rupees Ten Lakhs Sixty Nine Thousands Eight Hundred Forty) which have been mentioned in the application filed by the RP before the NCLT on 9th May, 2018.;