9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (10) TMI 1259 - HC - Companies LawSeeking transfer of winding up proceedings to National Company Law Tribunal (NCLT) - HELD THAT - The said issue of transfer of pending cases has also been considered by this Court in Citicorp International Limited v. Shiv-Vani Oil Gas Exploration Services Limited 2023 (7) TMI 1188 - DELHI HIGH COURT wherein the Court relying on the decision of the Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. 2020 (12) TMI 535 - SUPREME COURT has held that It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to now be decided in accordance with the provisions of the Code. A conjoint reading of Rule 5 of the notification dated 7th December, 2016 along with the aforementioned judgment would show that in cases where the petition is not at an advanced stage, the matter is to be transferred to the NCLT. Considering the fact that the winding up proceedings are at a nascent stage and only initial publication/citation was done in the newspapers, this Court is of the opinion that the matter cannot proceed before two fora - IBC being a statute which is meant to encourage revival of the company, it is deemed appropriate to transfer the present petition to NCLT, Allahabad Bench, Prayagraj. Petition disposed off.
Issues Involved:
1. Winding up of the Respondent Company. 2. Appointment of the Official Liquidator. 3. Transfer of proceedings to the National Company Law Tribunal (NCLT). 4. Status of the pending petitions and claims. Summary: Winding up of the Respondent Company: The petition was filed under Section 433(e) and Section 439 of the Companies Act, 1956 seeking the winding up of "M/s Octagon Builders & Promoters" due to unpaid amounts. Multiple petitions (CO.PET.154/2014, CO.PET.156/2014, CO.PET.157/2014, CO.PET.168/2014, CO.PET.169/2014, CO.PET.170/2014, CO.PET.212/2014, CO.PET.290/2014, and CO.PET.147/2014) were consolidated in this matter. Appointment of the Official Liquidator: On 27th August 2018, the Court appointed the Official Liquidator (OL) to take over the assets, books of accounts, and records of the respondent company. The OL was also directed to publish citations in newspapers and prepare an inventory of the company's assets. Transfer of proceedings to the National Company Law Tribunal (NCLT): The Insolvency and Bankruptcy Code (IBC), 2016, mandates the transfer of pending proceedings under Section 434 of the Companies Act, 1956 to the NCLT. The court referenced Rule 5 of the notification dated 7th December 2016, and the Supreme Court's decision in Action Ispat and Power Limited v. Shyam Metalics and Energy Limited (2021) 2 SCC 641, which supports the transfer of cases not at an advanced stage to the NCLT. Status of the pending petitions and claims: The Court noted that the winding-up proceedings were at a nascent stage with only initial publication done. The Court emphasized the objective of IBC to revive the corporate debtor, making liquidation a last resort. Consequently, the Court decided to transfer the petition to the NCLT, Allahabad Bench, Prayagraj, and recalled the order appointing the Liquidator. The petitioners were granted liberty to file claims before the NCLT. The electronic records were directed to be transmitted to the Registrar NCLT within one week. The application for impleadment by Mr. Naresh Kumar Dhawaria was also permitted to be pursued before the NCLT. Final Orders: The petition and all pending applications were disposed of with directions to list the matter before the NCLT Allahabad Bench on 1st November 2023, ensuring that any transactions post-petition filing would be dealt with by the NCLT in accordance with the law.
|
