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2020 (10) TMI 692 - Tri - Companies LawWinding up of Company - failure to make payment of outstanding dues due to financial difficulty - section 433 (e) (f) R/w 434 439(1) (b) of the Companies Act, 1956 - HELD THAT - The main Company Petition was filed before the Hon'ble High Court of Karnataka, as early as 18.12.2015, wherein it was not properly prosecuted resulting into the dismissal of the Company Petition, even for non-compliance of office objections. The Petitioner also could not serve notice of the Petition on the Respondent till date, even after transferring the matter to Tribunal, the Petitioner has not taken any steps to comply with the rule 5(1) of the TPP rules, 2016 till date. The last date for complying with the promise of the court was 15.07.2017. Admittedly the Petitioner has not taken any steps to comply extend provisions of the CPP rules till date. Therefore the Petitioner is liable to dismiss for non-compliance of extend rules after transfer from the Hon'ble High Court of Karnataka. The case was transferred to this Tribunal by Hon'ble High Court of Karnataka vide proceedings dated 18.11.2019. Accordingly, the case was scrutinized by the Registry of this Tribunal and found that only one set of paper was available, and thus another set was s required to be filed on the record, and the Petitioner has to compliance provisions as contemplated in the case. However the Petitioner failed to comply and was not present when the case was listed for admission on 27.12.2019. However, the Petitioner has not taken any steps to comply office objections raised by the Registry and also not served the copy of the Petition on other side. The Petitioner failed to submit the required information as required under Section 9 of the Code till date. Therefore, the instant Company Petition abates and thus it is liable to be rejected, by reserving liberty to the Petition to file appropriate Application/Petition in accordance with the provisions of the IBC 2016, and rules made there under. Petition is disposed of as abated by reserving liberty to the Petitioner to file appropriate Application/Petition in accordance with the extant provisions of the IBC 2016, and rules made there under.
Issues Involved:
1. Petition for winding up of the Respondent Company. 2. Non-payment of outstanding dues by the Respondent. 3. Dishonour of cheques issued by the Respondent. 4. Compliance with procedural requirements under the Companies Act and Transfer of Pending Proceedings Rules, 2016. 5. Transfer of the case from the High Court to the National Company Law Tribunal (NCLT). 6. Abatement of the petition due to non-compliance with procedural requirements. Detailed Analysis: 1. Petition for winding up of the Respondent Company: The petitioner, M/s. Ultra Tech Cement Limited, filed C.P. No. 294/2015 (TP. No. 03/2017) under Sections 433(e) & (f) read with 434 and 439(1)(b) of the Companies Act, 1956, seeking the winding up of M/s. J.S.R Constructions Private Limited. The petitioner also sought the appointment of an Official Liquidator to take charge of the respondent company's assets, affairs, books of accounts, and records. 2. Non-payment of outstanding dues by the Respondent: The petitioner supplied Portland cement to the respondent from August 2014 onwards and regularly raised invoices. However, the respondent failed to pay the amounts due, totaling ?39,78,250 as of 05.06.2015. Despite multiple requests and promises from the respondent, the outstanding amounts remained unpaid. 3. Dishonour of cheques issued by the Respondent: The respondent issued several cheques to the petitioner, which were dishonoured due to "FUNDS INSUFFICIENT." The petitioner notified the respondent about the dishonoured cheques through multiple notices, but the respondent did not clear the outstanding amounts, including the amounts covered under the cheques. 4. Compliance with procedural requirements under the Companies Act and Transfer of Pending Proceedings Rules, 2016: The case was initially filed before the Hon'ble High Court of Karnataka and later transferred to the NCLT following the amendment to the Companies Act, 2016. The petitioner failed to comply with Rule 5(1) of the Transfer of Pending Proceedings (TPP) Rules, 2016, which required the submission of information for admission under Sections 7, 8, or 9 of the Insolvency and Bankruptcy Code (IBC) within the stipulated time. The respondent argued that the petition should be considered abated due to non-compliance with these procedural requirements. 5. Transfer of the case from the High Court to the National Company Law Tribunal (NCLT): The Hon'ble High Court of Karnataka, by an order dated 18.10.2019, transferred the case to the NCLT. The case was listed for admission on 27.12.2019, but the petitioner failed to serve notice to the respondent and comply with office objections. The respondent contended that the transfer of the petition to the NCLT was automatic from 15.12.2016 by operation of law, and the petitioner should have taken steps to comply with the TPP Rules, 2016. 6. Abatement of the petition due to non-compliance with procedural requirements: The NCLT found that the petitioner did not comply with the procedural requirements under Rule 5(1) of the TPP Rules, 2016, and failed to serve notice to the respondent. The petition was not properly prosecuted, resulting in its dismissal for non-compliance with office objections. The NCLT concluded that the petition abated and was liable to be rejected, but reserved liberty for the petitioner to file an appropriate application under the IBC, 2016. Conclusion: The NCLT disposed of C.P. No. 294/2015 (TP. No. 03/2017) as abated due to the petitioner's failure to comply with procedural requirements. The petitioner was granted liberty to file an appropriate application under the IBC, 2016. No order as to costs was made.
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