Jurisprudence emanating from Section 238-A of the Insolvency & Bankruptcy Code, 2016: B.K. Educational Services (P) Ltd. V/s Parag Gupta & Associates (2018)
Section 238-A of the I&B Code, 2016 (hereinafter referred to as the ‘IBC’) was inserted by the Insolvency & Bankruptcy Code (Second Amendment) Act, 2018 with effect from 06.06.2018. Section 238-A of the IBC reads as under:
“238-A. Limitation- The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be.”
The moot question that arose for adjudication in the matter of: B.K. Educational Services (P) Ltd. (Supra) was:
I. Whether the Limitation Act, 1963 will apply to applications that are made under Section 7 and/or Section 9 of the IBC on and from its commencement on 01.12.2016 till 06.06.2018?
II. Section 238-A of the IBC is prospective or retrospective in nature?
Part I: Introduction: Four decades back, Charles Winick in his work of acclaim, The Lively Commerce, stated that, in a theoretically good society, where sexual fulfillment ought to be possible as other kinds of personal satisfaction, no one would be a prostitute or a client.i Prostitution is often thought of as a threat to the marriage-family institution; law-makers are often afraid that, the delicate threads which binds the society together will be broken if people are free to engage in coitus
for pleasure; laws, it is stated, are often not enforced adequately because the police have too many other things to do; judges also know that incarceration will not rehabilitate a prostitute, nevertheless, laws exist to emphasize that prostitution is not a socially acceptable form of behavior.
A person is said to have become “insolvent” when he becomes incapable of recompensing his debts in the ordinary course of business, or he becomes incapable of disbursing his debts as they become due, whether or not, he has committed an act of insolvency.i However, a debtor who does certain acts,tending to defeat or delay his creditors, may be adjudged bankrupt, and so be made liable to the bankruptcy laws.Read More