As per section 230 of companies act, 2013, a liquidator appointed under IBC shall make an application with the tribunal for compromise or arrangement.
If we read section 238 of IBC, Its gives an understanding that IBC over rides all the acts.
Under IBC two resolution is possible, revival by new promoter or existing, in few cases or liquidation.
With section 238 of the IBC, how can we justify the provisions of section 230 of companies act 2013.
Kindly clarify.
Section 238 of IBC code,2016 which is a non obstante clause gives IBC overiding powers over all other Acts which means while following provisions of IBC any provision in any other law which is repugnant to provisions of IBC SHALL NOT HAVE EFFECT.
The liquidator appointed under IBC have to see 2 possibilities whether there is chance of revival under IBC and if that fails he will push the co. in winding up and when doing so all repugnant provisions in any other law shall be void
however if he proposes to go for compromise or arrangement u/s230 of Companies Act,2013 he is allowed to do so as he is opting out of iBC and going for provisions of companies act,2013 so there is no issues of contradiction.Also rules of Companies(Compromise,arrangemeng,amagamation),2016 has provided the defination of Liquidator which means LIQUIDATOR APPOINTED UNDER THE ACT OR UNDER THE IBC CODE,2016 which means the liquidator appointed under ibc is allowed to file petition of compro and arrangements u/s230.
conclusion-section 230 of CA,2013 will remain valid if liquidator so appointed under iBC choses to opt out of ibc and go for sectio 230.
I have answered this question to the best of my knowledge and belief.
Hope this answer will satisfy your querry.
thanks
CAclubindia
