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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 ..... Act of 1956 as well as the Insolvency Resolution Process is initiated for the benefit of the general body of creditors and is a representative action and not for the recovery of money of the individual creditor for which necessarily claims are required to be submitted to the Official Liquidator or the Interim Resolution Professional as the case may be. In the instant case in view of the matter pending before the Hon'ble High Court of Delhi which has also thought it fit to appoint the Official Liquidator as the Provisional Liquidator of the respondent company, the Interim Resolution Professional, if appointed will 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of the respondent company on 22-02-2017 through e-mail. The amount due to the applicant by the respondent company remains unpaid and hence taking into consideration the circumstances it is just, fair and equitable and in the interest of justice that the corporate insolvency process be initiated against the respondent company as contemplated under the provisions of IBC. 3. During the course of hearing on 10-04-2017 we were made to understand by the representative of the Official Liquidator's office 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies which have not been transferred from the High Courts ; shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959 . 6. In view of the above notification, winding up petitions pending against the respondent company has not been transferred by the Hon'ble High Court of Delhi to this Tribunal and it is seized of the same. Further a careful reading of the order passed by the Hon'ble High Court of Delhi on 03.02.2017 the material portion of which is reproduced hereunder: Under these circumstances, I am satisfied that the present batch of petitions needs to be admitted forthwith. Consequently, the petitions are admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of account and records of the said Company forthwith. The citations be published in the Delhi editions of the newspapers 'Statesman' (English) and 'Veer Arjun' (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioners collectively who s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble High Court of Delhi as well as the Notification issued by the Central Government and as extracted above it is clear 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 as canvassed by the petitioner in admitting the petition de-horse of the winding up proceedings, on such admission this Tribunal is enjoined to appoint an Interim Resolution Professional who is required to perform under the provisions of IBC including duties enjoined under section 18 of IBC, more particularly so of sub-section (e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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