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TMI Blog2017 (8) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... against Alok Industries Ltd., for triggering Insolvency Resolution Process under Section 7 of The Insolvency and Bankruptcy Code, 2016 (" Insolvency Code" for short) seeking permission to intervene in CP No.(IB) 48/2017; to dismiss CP No.(IB) 48/2017 or in the alternative to stay the proceedings in CP No.(IB) 48/2017. 2. The facts in brief, that are germane for the disposal of this Application are as follows; 2.1 The Hongkong and Shanghai Banking Corporation Limited ("HSBC") as an agent of Lenders including the present Applicant, filed Company Petition No. 194 of 2016 on 8th March, 2016 before the Hon'ble High Court of Bombay seeking winding up of Alok Industries Ltd under Section 433(e) of the Companies Act, 1956. 2.2 During the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Hon'ble High Court of Bombay in view of the Companies (Transfer of Pending Proceedings) Rules, 2016. 2.4 Further, it is the case of the Applicant that when the winding up proceedings are at an advanced stage before the Hon'ble High Court of Bombay, any order passed in CP No.(IB) 48/2017 will lead to conflicting orders being passed by different forums. The present Application is filed before this Authority on 17.7.2017. The notice on this Application has been served on the State Bank of India and Alok Industries Ltd. 3. Heard the arguments of learned Senior Counsel appearing for Industrial And Commercial Bank of China Ltd and the learned counsel appearing for the State Bank of India and Alok Industries Ltd. 4. It is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rim Liquidator has been postponed. 7. Learned Counsel appearing for the Applicant further contended that any order passed in this Application may result in conflict with the order that is going to be passed by the Hon'ble High Court of Bombay on 19th July, 2017 or thereafter. 8. Learned Counsel appearing for the State Bank of India contended that Applicant is not entitled to take shelter under Section 446 of the Companies Act, 1956 in view of the fact that the winding up petition has not yet been admitted; no winding up order has been passed; and no Liquidator was appointed. 9. Learned Counsel appearing for the Applicant fairly conceded that his case is not covered by the provisions of Section 446 of the Companies Act, 1956 since no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Bank of India and its Associate Banks who are Financial Creditors from triggering the insolvency resolution process under Section 7 of the Code. 14. The pendency of winding up proceedings before the Hon'ble High Court of Bombay before its admission is no bar either for the initiation of proceedings under Section 7 of the Code or for continuation of such proceedings. 15. In the case on hand, in Company Petition No. 194 of 2016, the winding up petition has not yet been admitted; no winding up order has been passed by the Hon'ble High Court of Bombay. There is no order appointing Official Liquidator as Interim Liquidator. 16. When there is no order passed by the Hon'ble High Court of Bombay, the argument of the Senior Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nai, by its order dated 21.4.2017 in CA/1/(IB)/2017 clearly held that the pendency of winding up petition cannot be a bar under the Code for initiating the corporate insolvency process unless the winding up order has been passed by the Hon'ble High Court and Liquidator has been appointed. The said order was challenged before the National Company Law Appellate Tribunal, New Delhi. The National Company Law Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 41 of 2017 vide its order dated 19.5.2017 referring to Section 14 of the Code and Section 238 of the Code observed that the provisions of Insolvency and Bankruptcy Code will prevail over all other Laws in force including the Companies Act, 1956. It is also observed in the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the Insolvency Resolution Process. But in the case on hand, the winding up petitions filed by other creditors including the present Applicant are not even admitted by the Hon'ble High Court of Bombay till today. 20. Learned Counsel appearing for the Applicant contended that propriety also demands this Adjudicating Authority to postpone the order in CP No.(IB) 48/2017. When there is no order from the Hon'ble High Court of Bombay, it is neither just nor expedient nor appropriate to postpone the pronouncement of order in CP No. (IB) 48/2017 awaiting an order from the Hon'ble High Court of Bombay. 21. The argument of the learned counsel for the Applicant that his client being the Financial Creditor, he is entitled to be he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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