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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 ..... dings pending in the Company Court to the National Company Law Tribunal (NCLT) under Section 434 of the Companies Act, 1956 ('Act'). 4. The background facts are that a winding up petition being CP No.81/2014 was filed by Tata Capital and Financial Services Ltd. (Respondent No.1) in the Company Court for recovery of monies owed to it by the Appellant. In the said petition, orders were being passed from time to time. In the order dated 7th August, 2015, it was noted by the learned Company Judge that according to the Respondent No.1, it had provided financial services by way of term loan of Rs. 5 crores to the Appellant which was to be repaid in 48 monthly installments along with interest which was agreed to be 4% less than the long term lending rate, which at the material time, worked out to be 13% per annum. 5. The Appellant paid certain installments initially and then defaulted. The Appellant issued post dated cheques but subsequently requested Respondent No.1 not to present those cheques in view of the Appellant's financial constraints. Thereafter, a notice was issued by Respondent No.1, which was not responded to by the Appellant. This was followed by Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018, a cheque dated 15th March, 2018 for Rs. 2.10 crores was issued by one Ozogreen Infra Projects Pvt. Ltd. and was handed over to the counsel for the Respondent No.1 with the senior counsel for the Appellant assuring that the cheque would be honoured when presented. On 4th April, 2018, the Company Court noted in its order that the cheque had been returned as dishonoured. The Director of the company which issued the cheque, who was present in person on that date, informed the Company Court that the payment would be made within 10 days. The matter was then adjourned to 27th April, 2018. 12. C.A.No.597/2018 was then filed by the Respondent No.1 on 15th May, 2018 for reviving the earlier order dated 7th August, 2015 appointing the OL as PL. The Court after noting the fact that no payment, in terms of the consent order between the parties, had been made, revived the order dated 7th August, 2015. 13. On 29th June, 2018, the UCO Bank (Respondent No.3) filed C.A.No.741/2018 in which it was stated that it came to know of the pendency of the company petition during the course of proceedings of the Insolvency and Bankruptcy petition filed by it before the NCLT. It was pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018. On 23rd May, 2018, the Appellant appeared before the NCLT and placed before it the order dated 15th May 2018 of the Company Court and stated that a Provisional Liquidator had already been appointed. 18. In terms of the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 issued on 6th June, 2018, a new proviso was added in Section 434 (1) (c) of the Act which read as under: "Provided further that any party or parties to the proceedings relating to 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 to the tribunal and the proceedings so transferred shall be dealt with by the Tribunal as an application for initiation of corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016." 19. It was pursuant to the above added proviso that UCO bank filed CA No.741/2018 in the Company Court seeking impleadment and C.A.No.742/2018 seeking transfer of the proceedings pending in the Company Court to the NCLT for the petition to be dealt with under the provisions of the Insolvency and Bankruptcy Code, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the Respondent No.1 had acted unfairly in not disclosing certain material facts before the Company Court. However, she submitted that the Appellant will seek other appropriate remedies since that was not the subject matter of the order under appeal here. She pointed out that there were some other claimants whose impleadment the Appellant was seeking, viz., M/s. Magma Fincap Ltd. and Arjun Chemicals Pvt. Ltd. She pointed out that the separate winding up petitions filed by these two companies, CP Nos.2/2014 and 101/2016, were disposed of by the Company Court by separate orders dated 18th July, 2018 permitting them to file their claims before the OL. According to her, without hearing the said two companies, the learned Single Judge could not have passed the impugned order. 25. On the other hand, Mr. Rajiv Rattan, learned counsel for the Respondent No.3-UCO Bank maintained that there was no other option left with the lenders but to approach the NCLT. The fact was that despite being a secured creditor, UCO Bank was unable to recover any amount from the Appellant. He submitted that the application before the Company Court was rightly maintained by the UCO Bank and the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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