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TMI Blog2018 (10) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... the winding up proceedings has been admitted and ordered for winding-up of the respondent- ‘Corporate Debtor’, we hold that the question of initiation of ‘Corporate Insolvency Resolution Process’ against same ‘Corporate Debtor’ does not arise. Application dismissed. - CO.PET. 152/2016 - - - Dated:- 27-9-2018 - MR. JAYANT NATH J. Petitioner Through: Petitioner in person Respondent Through: Mr. D. Bhattacharya, Adv. for OL. Mr. Pramod Kalirana, Mr. Pankaj Mehta, Ms. Shweta Soni and Mr.R.K.Mehta, Advs. For applicant in A 7732/2018 7689/2018 Mr. S.K. Bhatia, Adv. for applicant in CA 381/2018 Mr. D. Bhattacharya, Adv. for OL with Mr. Ravi Kumar Metta, Asst. OL JAYANT NATH, J.(ORAL) CA 1025/2018 1. This application is filed by Mr.Chandra Shekhar who is said to have booked a commercial space in one of the projects of the respondent company seeking appropriate orders for transferring of the present petition to NCLT. The applicant states that he has also moved an application under section 7 of the Insolvency and Bankruptcy Code, 2016 before NCLT on which NCLT on 25.5.2018 has passed orders appointing IRP (Interim Resolution Professional). Hence, it is pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days; and (c) all proceedings under the Companies Act, 1956 (1 of 1956), including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer: Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government. Provided further that any party or parties to any proceedings relating the winding up of companies pending before any Court immediately before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018, may file an application for transfer of such proceedings and the Court may by order transfer such proceedings to the Tribunal and the proceedings so transferred shall be dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionary and the power to pass it must, therefore, be directory and not mandatory. In other words, the word may , used before stay in Section 442 of the Act really means may and not must or shall in such a context. In fact, it is not quite accurate to say that the word may , by itself, acquires the meaning of must or shall' sometimes. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatoriness. 8. Thus, the question to be determined in such cases always is whether the power conferred by the use of the word may has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed conditions, to be shown by evidence, a particular kind of order must be made. If the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. Clearly, the word may here has to be read as discretionary power to be exercised in the facts and circumstance of the case so as to expeditiously deal with the proceedings/winding up. 10. I may now look at the judgment of the Division Bench of Bombay High Court in Jotun India Private Limited vs. PSL Limited, 2018 SCC Online Bom 1952 (supra) relied upon by the learned counsel for the applicant. In that case the Bombay High Court was dealing with a case where the respondent company was subject to proceedings before BIFR. The petitioner approached the company court and the petition was admitted by the learned company judge. With the repeal of SICA, a corporate debtor thereafter filed an application before NCLT under section 10 of the IBC. The learned judge by an order restrained NCLT from continuing with the IBC application. Subsequently, on an application filed by the corporate debtor seeking vacation of the said injunction, the learned single judge vacated the order holding that there is no bar on NCLT from proceedings with IBC application. In those facts the Division Bench of the Bombay High Court has taken the following view:- 45. In view of the afore-stated r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance 1. Cosmick Eagle Realtors Pvt. Ltd. 1,416,212 156,914,116 15,539,790 2. Cosmic Orange Yojna Pvt. Ltd./Cosmic Town planners 2,940,000 23,781,042 20,841,042 3. Cosmic Orange Infraventures Pvt. Ltd. (HS Madhukar) 2,675,689 2,675,689 4. Cosmic Orange Infraventures Pvt.LTd. (HS Madhukar) 53,000,000 53,000,000 5. Cosmic Yojna Infotech Pvt. Ltd. 4,400,000 134,560,870 130, 160,870 6. Jaguar Infrastructure 100,000 100,000 7. 51, Rohini Infra Developers Pvt. Ltd. 15,649,798 23,990,971 8,341,173 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 647000 24. Cosmic Infradevelopers Pvt. Ltd. 10,000 100,000 90,000 25. Cosmic Townplanners Pvt. Ltd 100,000 100,000 26. Sun Infrarealty Pvt. Ltd. 100,000 100,000 TOTAL 58,478,503 488,373,273 429,794,770 Entities taken over by cosmic for purpose of land purchase Total receipts Total payments Net balance 1. Bluebell Infra Developers Realtors Pvt.Ltd. 5,439,215 5,439,215 2. Amiras India 97,583,400 97,583,400 3. Amplex Technology Parks Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity is given to the Ex. Directors. They will be able to repay the dues of the investors and satisfy them with appropriate immovable properties. He further states that the Directors have moved a revival scheme and hence this court may refrain from passing any directions for SFIO. Mr.Jagjit Singh, Advocate relies upn judgment of this court in Sunair Hotels Limited vs. Union of India Anr., 240(2017) DLT 535 where this court held as under:- 62. The ground on which investigation was found to be warranted is public interest within the meaning of the provisions of Section 212 of the 2013 Act. The Black s Law Dictionary, Sixth Edition, defines the expression public interest to mean something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. In my opinion a perusal of the chargesheet clearly shows that there has been prima facie an attempt to siphon off money from the respondent company. This aspect would require further examination and it will be necessary that SFIO is appointed in the interest of various investors. This is a fit case to direct SFIO to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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