2020 (10) TMI 125 - Tri - Companies Law

Grant of Leave to continue the suit filed against Gaon Wonderland Properties Pvt. Ltd. - section 279 of Companies Act, 2013 - HELD THAT - Appellant says that he has filed a Suit against the M/s Gaon Wonderland properties Private Limited and its Director before the Court of Civil Judge, Senior Division at Panji in Special Civil Suit No.44 of 2008 for specific purpose of contract dated 28.11.2006. However, no contract dated 28.11.2006 was placed before this Bench. Instead, what was placed before this Bench is an unregistered Agreement dated 28.11.2011 (though notarized) where the Company has agreed to compensate the Petitioner towards his services. Therefore, this Bench is not on a firm footing to decide as to how a Civil Suit was filed in 2008 though the unregistered Agreement which is signed between the parties is dated 28.11.2011. The interpretation of the Bench is that in the Company Petition No. 24/2012 an Order was passed by the Hon'ble High Court of Bombay, Bench at Goa appointing a Liquidator and initiating the process of Liquidation. This Bench understands that the process of Liquidation, interalia, involves the Official Liquidator making public announcement, submitting report on the fixed assets and liability and carrying out the liquidation process. The job of the Official Liquidator essentially relates to squaring up the Assets and Liability side and completely liquidating the assets of the Company and, thereafter filing a report before the Hon'ble High Court of Mumbai, Goa Bench for dissolving the Company - this Bench is of the view that the final outcome of CP No.24/2012 is by way of dissolution of the Company and, therefore, the appointment of the OL vide its Order dated 19.06.2018 is just an intermediate stage and the final outcome in CP 24/2012 is still pending. The Petitioner s is directed to take appropriate steps to file leave application before the Hon ble High Court, Bombay bench at Goa. This Bench is of the view that NCLT has no jurisdiction to grant leave in the matter which is pending before the Hon ble High Court, Bombay Bench at Goa - Matter disposed off.

Summary

Issues Involved:
1. Jurisdiction of NCLT to grant leave under Section 279 of Companies Act, 2013.
2. Validity and relevance of the contract dated 28.11.2011 in relation to the suit filed in 2008.
3. Requirement of leave under Section 446 of the Companies Act, 1956 to continue the suit.

Detailed Analysis:

1. Jurisdiction of NCLT to Grant Leave Under Section 279 of Companies Act, 2013:
The primary issue addressed was whether the NCLT has jurisdiction to grant leave under Section 279 of the Companies Act, 2013, when a winding-up petition is already filed at the High Court of Bombay, Goa Bench, and an Official Liquidator is appointed. The Tribunal noted that the winding-up process, including the appointment of the Official Liquidator, was initiated by the High Court of Bombay, Goa Bench. According to the Ministry of Corporate Affairs Notification dated 07.12.2016, petitions under clauses (a) and (f) of Section 433 of the Companies Act, 1956, pending before a High Court, should be transferred to the NCLT only if the petition has not been served on the respondent. Since this condition was not met, the NCLT concluded it lacked jurisdiction to grant leave, directing the petitioner to seek leave from the High Court of Bombay, Goa Bench.

2. Validity and Relevance of the Contract Dated 28.11.2011:
The Tribunal observed a discrepancy regarding the contract date. The petitioner claimed to have filed a suit in 2008 based on a contract dated 28.11.2006. However, the only contract presented was an unregistered agreement dated 28.11.2011. This discrepancy raised questions about the basis for the 2008 suit. Despite this, the Tribunal focused on the jurisdictional issue, noting that the contract's validity and relevance were secondary to the jurisdictional determination.

3. Requirement of Leave Under Section 446 of the Companies Act, 1956:
The Liquidator contended that under Section 446 of the Companies Act, 1956, the petitioner needed leave from the High Court of Bombay, Goa Bench, to continue the suit. The Tribunal agreed, emphasizing that since the winding-up order and the appointment of the Official Liquidator were under the Companies Act, 1956, the petitioner should have sought leave from the High Court. The Tribunal reiterated that it did not have jurisdiction to grant leave for proceedings under the Companies Act, 1956.

Conclusion:
The Tribunal concluded that it lacked jurisdiction to grant leave under Section 279 of the Companies Act, 2013, for a matter pending under the Companies Act, 1956, at the High Court of Bombay, Goa Bench. The petitioner was directed to seek appropriate leave from the High Court. The matter was disposed of accordingly.