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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 ..... ecord and is sent to the Registry for scanning. 3. Learned counsel for the applicant has relied upon judgment of the Division Bench of the Bombay High Court in Jotun India Private Limited vs. PSL Limited, 2018 SCC Online Bom 1952 to contend that the Insolvency Code would have precedence over the Companies Act, 1956 and that as per the said judgment, where revival/resolution proceedings are initiated, NCLT would have precedence. However, he submits that to avoid any conflict it would be in the interest of justice that this court may in exercise of powers under proviso to section 434 of the Companies Act, 2013 transfer the present petition to NCLT. 4. Learned counsel appearing for the OL and for the petitioner have opposed the present application. It has been pointed out that the petition was admitted and the OL was appointed as the Provisional Liquidator way back on 11.1.2017. Thereafter the entire assets of the respondent company have been sealed and taken into custody by the OL and the process of valuation of the assets is going on. In the meantime, on 29.5.2018 noticing that the Ex. Directors were guilty of siphoning off money this Court had directed SFIO to investigate into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government may make rules consistent with the provisions of this Act to ensure timely transfer of all matters, proceedings or cases pending before the Company Law Board or the courts, to the Tribunal under this section." 6. As per the proviso to section 434(1) (c) any party or parties to the proceedings relating to the winding up of companies may file an application for transfer of such proceedings to the NCLT. The proviso further adds that this court may by an order transfer the winding up proceedings to NCLT. I may note that the applicant is not a party to the present proceedings. 7. It has not been argued before me that in the proviso to Section 434 (1)(c) of the Act the word 'may' as used therein, namely, that the court may by order transfer such proceedings to the tribunal is mandatory in nature. In my opinion, the same is a discretionary power which has to be exercised in the facts and circumstances of the case. 8. In this context reference may be had to the judgment of the Supreme Court in The Official Liquidator vs. Dharti Dhan (P) Ltd., (1977) 2 SCC 166. The Supreme Court was in that case interpreting the powers of the court under Section 442 (b) of The Companies Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish that the legal conditions are fulfilled. A power is exercised even when the court rejects an application to exercise it in the particular way in which the applicant desires it to be exercised. Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary. It is not the conferment of a power which the word "may" indicates that annexes any obligation to its exercise but the legal and factual context of it. This as we understand it, was the principle laid down in the case cited before us: Frederic Guilder Julius v. Right Rev. Lord Bishop of Oxford: Re v. Thomas Thellusson Carter [5 AC 214] . xxx 10. The principle laid down above has been followed consistently by this Court whenever it has been contended that the word "may" carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exercised in particular cases are also specified by a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails." 11. The facts of this case are slightly different. In this case on 17.01.2017 this court admitted the petition and appointed the OL attached to this court as the provisional liquidator of the respondent company. The liquidator was directed to take all assets, books of accounts and records of the respondent company forthwith. Citation was also directed to be published. These steps have already been taken. 12. On 29.5.2018 this court passed the following order: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Premier League Structures Pvt. Ltd. 75,000 75,000 22. Growth Inche Infratech Pvt. LTd. 336996 2107811 1770815 23. Cosmic India Structures Ltd. 647000 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. 30,534,000 30,534,000 4. Minimax Computers & Software Pvt. Ltd. 250,625,000 250,625,000 5. Splendor Infopark Pvt. Ltd. 2,100,000 2,100,000 6. Bluebell Infra Developers 100,000 100,000 Total 386,381,615 386,381,615 Trusts Incorporated for CSR Initiatives Total receipts Total payments Net balance 1. Subhash Muttreja Foundation 5,950 12,509,324 12,503,374 2. Mission India Development Forum 86,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port. List on 13.8.2018." 13. A perusal of the above order would show that there are allegations of fraud and misappropriation on the part of the Ex. Directors. I am informed that the Ex. Directors Mr.Sushant Mutreja and Mr.Nishant Mutreja are still in judicial custody pursuant to lodging of different FIRs against them. 14. Keeping in view the observations in the chargesheet, this court has already ordered investigation by the SFIO. The liquidation proceedings are at an advanced stage. Much time has passed since the order appointing the OL as the Provisional Liquidator was passed. 15. In view of the above, in my opinion, there is no ground made out to transfer the petition to NCLT. 16. I may also note that the learned counsel for the applicant had pleaded that this fact that this court has admitted this petition and appointed the OL as the provisional liquidator was brought to the notice of NCLT. However, a perusal of the order of NCLT dated 25.05.2018 does not show any reference to the fact that the proceedings are pending in this court. 17. I may only note that the issue as to whether NCLT can initiate Insolvency Resolution Process when a company has been directed to be wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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