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TMI Blog2018 (12) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the present appeal. That will have to be pursued separately by the Appellant in accordance with law. Thus this Court concurs with the Company Court that it was in the best interest of all the creditors that the matter should be transferred to NCLT. - CO.APP. 22/2018 - - - Dated:- 3-12-2018 - S. MURALIDHAR AND SANJEEV NARULA JJ. Appellant Through: Ms. Geeta Luthra, Sr. Advocate with Mr. Ashutosh Dubey, Mr. Pranav Vashishtha and Mr. Anshul Duggal, Advocates. Respondents Through: Mr. Varun Kumar, Mr. Dheeraj Pratap Deo, Mr. Vishal Vijayvargiya and Ms. Dushreya P.S. Rudy, Advocates for R-1. Ms. Ruchi Sindhwani, Sr. Standing Counsel with Ms. Megha Bharara, Advocate for Official Liquidator. Mr. Rajesh Rattan, Advocate for R-3/UCO Bank. O R D E R Dr. S. Muralidhar, J.: CM No. 50627/2018 (for exemption) 1. Allowed, subject to all just exceptions. CO.APP. 22/2018 CM Nos. 43234/2018 50611/2018 2. This is an appeal by M/s Shree Shyam Pulp Board Mills Ltd. against the order dated 13th September, 2018 passed by the Company Court in CA No.741-742/2018 in CP No.81/2014. 3. The main grievance of the Appellant is that the Company Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that despite repeated efforts, they had been unable to find any buyer. Granting Respondent No.1 time to file their rejoinder, the petition was adjourned to 31st July, 2017. The interim order passed on 31st January, 2014 restraining the Appellant from alienating any of its immovable assets was made absolute during the pendency of the petition. 9. On 26th September, 2017, the Appellant pointed out to the Company Judge that a piece of land in possession of Respondent No.1, was taken over by it in SARFAESI proceedings. Counsel for the Appellant sought some more time to find a buyer for said piece of land. The Company Court then adjourned the matter to 18th December, 2017. 10. Again on 23rd January 2018, the Appellant was given time by the Company Court to bring a prospective buyer. A consent order was thereafter passed on 16th February, 2018 by the Company Court whereby the Appellant agreed to pay the Respondent No.1 ₹ 1 crore on or before 2nd March, 2018 and the balance of ₹ 1.10 crores on or before 28th March, 2018, failing which the earlier order dated 7th August, 2015 would stand automatically revived. Upon second installment being paid within the agreed upon tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets of the Appellant and the same was published in a daily newspaper. 15. UCO Bank informed the Company Court in said application that the physical possession of the mortgaged immovable properties of the Appellant situated at District Rudrapur, Uttarakhand, with plant and machineries‟ were taken by its authorized officers on behalf of the consortium on 18th February, 2017. 16. The Appellant then filed an appeal challenging the SARFAESI Act measures before the DRT, Dehradun. This was, however, dismissed by an order dated 6th November, 2017. 17. The mortgaged properties were put to sale through e-auction on two different dates on 10th October, 2017and 13th February, 2018 by UCO Bank, but no bids could be received. In those circumstances, UCO Bank and the joint lenders at a meeting held on 16th February, 2018 agreed to file a case before the NCLT. By a letter dated 6th March, 2018, the Appellant offered a one-time settlement (OTS) proposal to settle the dues. UCO Bank then filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) read with Rule 4 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the circumstances, by the impugned order dated 13th September 2018, the Company Court expressed the view that it would be in the interest of all the creditors that the proceedings be transferred to NCLT and an attempt was made for initiation of corporate insolvency resolution. The order dated 7th August, 2015, which was revived on 15th May 2018, appointing the OL as PL, was revoked subject to UCO Bank paying the expenses of ₹ 75,000/- incurred by the OL. On receipt of said sum, the OL was to deseal the office premises that had been sealed. The Company Petition 81 of 2014 was transferred to the NCLT. 22. The Court has heard the submissions of Ms. Geeta Luthra, learned Senior counsel appearing for the Appellant, Ms. Ruchi Sindhwani, Standing Counsel for the OL and Mr. Rajesh Rattan, Advocate for the Respondent No.3 UCO Bank. 23. Ms. Luthra took exception to the Company Court entertaining the application filed by the UCO Bank. She submitted that in terms of proviso to Section 434 (1) (c), the UCO Bank was not the party to the proceedings relating to the winding up of the Appellant before any Court immediately before commencement of the Insolvency and Bankruptcy Code (Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tending that UCO Bank was not a party to any proceedings relating to the winding up which were pending in any Court, the fact remains that the OL was a party to the winding up proceedings. The OL had initially not opposed the prayer of UCO Bank. The OL s attempt to withdraw its consent to the transfer was negative by the Company Court. The OL has accepted the order of the Company Court in that regard. 28. The fact, therefore, remains that except for the Appellant, there is no opposition by the OL or any of the parties to the winding up proceedings to the transfer of the proceedings to the NCLT. The OL was certainly a party to the winding up proceedings and this was sufficient, in terms of the proviso to Section 434(1) (c) of the 2013 Act, for the Company Court to proceed to exercise its discretion in the matter. With the prospect of recovery of dues being brighter in the NCLT, the two other claimants can also have no objection to the transfer of the proceedings to the NCLT. 29. The fact of the matter is that despite pendency of the winding up petition for more than four years, no money has been able to be recovered by any of the creditors. At this juncture it is necessary for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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