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2018 (11) TMI 559 - HC - Insolvency and BankruptcyCorporate insolvency resolution process - revival of a sick company - Held that - In the present case, creditors of Corporate Debtor have initiated proceedings for winding up of the Company or the Corporate Debtor under Part VII of the Act of 1956 and not for a compromise and making arrangements for reconstruction of the company under Section 391 which is a part of Part VI, Chapter V of the Act of 1956. Although there can be no dispute about the proposition that during the pendency of the winding up proceeding, an application for compromise and making arrangements for rehabilitation of the Company can be filed under Section 391 of the Act of 1956. Leave is granted to continue with the Corporate Insolvency Resolution Process to the extent it is carried out under Chapter II, Part II of the Insolvency and Bankruptcy Code, 2016. All the creditors and also the operational creditors including the workers having preferential claims under Section 529A of the Companies Act, 1956 shall be allowed to submit their respective claims by the Resolution Professional by suitably extending the last date of submission of such claims in accordance with the provisions of the IBC, 2016 and relevant regulations and thereafter the Resolution Professional shall take necessary steps for completion of the resolution process in accordance with law. In case the forum under the IBC of 2016 which is National Company Law Tribunal, fails to revive or successfully implement the resolution plan, this Court seized of the winding up petitions would proceed to deal with these petitions in accordance with law and till then the effect of the order dated 21.3.2017 passed by this Court appointing provisional Official Liquidator is kept in abeyance. All the connected applications are disposed of accordingly. Company Application is also disposed of accordingly.
Issues Involved:
1. Jurisdiction of NCLT vs. High Court in insolvency resolution and liquidation proceedings. 2. Requirement of leave under Section 446 of the Companies Act, 1956 for ongoing insolvency proceedings. 3. Conflict between the Insolvency and Bankruptcy Code, 2016 (IBC) and the Companies Act, 1956. 4. Impact of parallel proceedings on the interests of creditors and stakeholders. 5. Validity and continuation of proceedings initiated without leave of the High Court. Detailed Analysis: 1. Jurisdiction of NCLT vs. High Court in Insolvency Resolution and Liquidation Proceedings: The judgment addresses the overlapping jurisdictions of the National Company Law Tribunal (NCLT) and the High Court concerning insolvency resolution and liquidation proceedings. The High Court retained petitions for winding up of the Corporate Debtor under the Companies Act, 1956, while the NCLT admitted an application under Section 7 of the IBC for initiating the Corporate Insolvency Resolution Process (CIRP). 2. Requirement of Leave under Section 446 of the Companies Act, 1956: The Resolution Professional filed applications seeking leave under Section 446 of the Companies Act, 1956, to continue with the CIRP. The High Court concluded that leave under Section 446 is necessary to proceed with the CIRP, emphasizing that the Company Court must be aware of other claims against the company to avoid conflicting claims and ensure effective liquidation. 3. Conflict between the IBC and the Companies Act, 1956: The judgment explores the interplay between Section 238 of the IBC, which gives it an overriding effect over other laws, and the provisions of the Companies Act, 1956. The High Court harmonized the two statutes by considering the legislative intent and the specific provisions of the IBC, Rules of 2016, and Order, 2016, which allow certain petitions to be retained by the High Court and governed by the Companies Act, 1956. 4. Impact of Parallel Proceedings on Interests of Creditors and Stakeholders: The Court acknowledged the necessity to avoid parallel proceedings, which could lead to complications and conflicting claims. It emphasized that the CIRP under the IBC, being a comprehensive and specialized process, should be allowed to proceed to explore the possibility of reviving the company before resorting to liquidation. 5. Validity and Continuation of Proceedings Initiated Without Leave of the High Court: The High Court held that proceedings initiated before the NCLT without obtaining leave under Section 446 are not void but voidable at the instance of the Official Liquidator. The Court granted leave to continue with the CIRP, subject to conditions, to ensure that the best interests of the Corporate Debtor and its stakeholders are served. Conclusion: The High Court granted leave to continue with the CIRP under the IBC, emphasizing the need for a harmonious interpretation of the IBC and the Companies Act, 1956. It held that the CIRP should proceed to explore revival possibilities, and if unsuccessful, the High Court would resume the winding-up process. The judgment underscores the importance of avoiding parallel proceedings and ensuring that the interests of all stakeholders are protected through a structured and efficient resolution process.
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