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TMI Blog2017 (8) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Corporate Insolvency Resolution Process be set in motion against the respondent company. The facts giving rise to such a prayer is that the respondent company and the applicant had entered into a service agreement wherein the applicant company had agreed to render certain IT related services to the respondent company and that from time to time for the services rendered invoices since the year 2014 had been raised for the payment of service fee. However the respondent company had been defaulting in the payment of dues and that presently a sum of Rs. 1,93,37,105 is due excluding interest payable by the respondent company to the applicant. 2. In view of the same and also taking into consideration that certain internal disputes were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice that in relation to the respondent company the Hon'ble High Court of Delhi has appointed the Official Liquidator as the provisional Liquidator in proceeding for winding up initiated before it in terms of section 450 of the Companies Act, 1956. When confronted with the above said fact, the counsel for the petitioner sought to distinguish the winding up proceedings pending before the Hon'ble High Court of Delhi and the Insolvency Resolution Process pending before this Tribunal as initiated by the petitioner, both proceedings however in relation to the same company, namely the respondent. This Tribunal however apprised the counsel for the petitioner about section 434 of the Companies Act, 2013 relating to transfer of proceedings as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3676 (E) - (1) This Order may be called the Companies (Removal of Difficulties) Fourth Order, 2016. (2) It shall come into force with effect from the 15th December, 2016. 2. In the Companies Act, 2013, in section 434, in sub-section (1), in clause (c), after the proviso, the following provisos shall be inserted, namely : "Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal: Provided further that - (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prepare a complete inventory of all the assets of the said Company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the said Company. In addition, the directors of the said Company shall file their statement of affairs within 21 days from today before the Provisional Liquidator. It is made clear that in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that the provisions of Companies Act, 1956 will govern in relation to the proceedings pending before the Hon'ble High Court of Delhi and not the Companies Act, 2013 as contended by the counsel for the applicant. If that be so, no suit or other legal proceeding shall be proceeded with, against the company, except by leave of the Court which is seized of the winding up proceedings. In the present instance no leave has been obtained by the applicant to proceed with present proceedings initiated by the applicant company before this Tribunal and obviously this Tribunal is therefore handicapped in proceeding further in relation to the above company petition. 8. Viewed from another angle also, assuming that this Tribunal proceeds further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l again be put on a collusive course with the Official Liquidator even in accepting the claims as may be filed as envisaged under section 21 of IBC.
9. Taking into consideration the above aspects and legal position we are not inclined to accept the submissions put forth by the Counsel for the Applicant and we are constrained to reject the application. Before parting we make it clear that any observations made in this order shall not be construed as an expression of opinion on the merit of controversy as we have refrained from entertaining the application at the initial stage itself. Therefore the right of the applicants before any other forum shall not be prejudiced on account of dismissal of instant application. X X X X Extracts X X X X X X X X Extracts X X X X
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