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TMI Blog2019 (3) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... th direction to admit the application under Section 7. - Company Appeal (AT) (Insolvency) No. 788 of 2018 - - - Dated:- 8-2-2019 - S.J. Mukhopadhaya And Bansi Lal Bhat, JJ. For Appellant: Mr. Ramji Srinivasan, Senior Advocate with Mr. Ajay Gaggar, Mr. Robin Sirohi, Ms. Vineeta Singh Rathore, Ms. Sylona Mohapatra, Mr. Basudeb Biswas and Mr. Rajesh Chaubey, Advocates. For Respondents: Mr. Ratnanko Banerjee, Senior Advocate with Ms. Richa Sandilya and Mr. Chetan Roy, Advocates for R-2. Mr. Upamanyu Hazarika, Senior Advocate with Mr. Dhruv Surana, Advocate for R-3. JUDGMENT Sudhansu Jyoti Mukhopadhaya, The State Bank of India - ( Financial Creditor ) filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) for initiation of the Corporate Insolvency Resolution Process against Jai Balaji Industries Limited - ( Corporate Debtor ) alleging existence of default in repayment of loan advanced to the Corporate Debtor . 2. Jai Balaji Industries Limited - ( Corporate Debtor ) challenged the said proceedings before the Hon ble High Court of Chattishgarh in W.P. No. (c) 699 of 2018 wherein an interim order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g up in the newspapers. Thereafter, the matter remained pending since long. 8. After about three years, on 7th June, 2018, when the matter was taken up, learned Single Judge noticed the following facts and observed: It is the case of the petitioner in this application that by an order dated August 17, 2015 a learned Single Judge of this Court admitted this winding-up application filed by itself against the company. By the said order the company was, however, granted an opportunity to pay the principal sum of ₹ 3,87,49,003/- (Rupees Three Crore Eighty Seven Lakh Forty Nine Thousand and Three only) together with interest at the rate of 8 per cent, per annum from February 11, 2014 and costs assessed at 2,000 GMs within a fortnight, failing which the windingup application would be advertised in the newspapers. The company carried the said order dated August 17, 2015 in appeal, being ACO No.146 of 2015, APOT No.419 of 2015, CP No.822/2014, before the Division Bench of this Court. By an order dated September 4, 2015 the Division Bench of this Court directed the company to deposit ₹ 50,00,000/- (Rupees Fifty Lac only) within September 11, 2015 as a condition for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly) in terms of the said consent order dated April 17, 2017 the petitioner is entitled not only to proceed with the winding-up application but also to obtain the final order of winding-up of the company. As mentioned earlier in spite of service of this application, none appears on behalf of the company to dispute the averments made by the petitioner in this application. In view of the above facts urged by the petitioner, which remain uncontroverted, it is evident that the company is involved circumstances and it is unable to pay its debt under Section 433(e) of the Companies Act,1956. Thus, this Court has no option but to allow this winding up application. Accordingly, there shall be an order in terms of prayers (a) to (g) of the Judge's Summons. The Official Liquidator is directed to forthwith take possession of all the assets and properties of the company lying at its registered office its factories, together with its business and affairs. Urgent certified website copies of this order, if applied for, be made available to the parties subject to compliance with all requisite formalities. 9. The aforesaid order dated 7th June, 2018 was challenged by the State B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the applicant bank in this application do not have any merit. For the reasons as aforesaid, the application, C.A. No. 165 of 2018 succeeds and the order dated June 07, 2018 passed by this Court in C.A. No. 51 of 2018 is recalled. Let, C.A. No. 51 of 2018, together with the winding up application, C.P. No. 822 of 2014 appear before this Court, under heading Company Matter Adjourned , on July 09, 2018 when appropriate direction will be passed for fresh advertisement of the winding up application of the petitioning creditor in the newspapers. It is, however, made clear that since this application is disposed of without requiring the petitioning creditor to file its affidavit-in-opposition, the allegations made against it in this application, if any, shall be deemed not to have been admitted. With the above directions, C.A. No. 165 of 2018 stands disposed of. There shall, however, be no order as to costs. Urgent certified copy of this judgment, if applied for, be made available to the parties subject to compliance with all requisite formalities. 10. On 19th July, 2018, the Division Bench of the Hon ble High Court of Calcutta taking into consideration the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... published, indicating that the company petition will appear before the company Court on the first available working day two weeks after the date of the publication. The publication of the advertisements has to be simultaneous in the newspapers on a date within two weeks from today. The department is directed to ensure that the company petition appears in the list on the returnable date. APO No.186 of 2018 and ACO No.22 of 2018 are disposed of. There will be no order as to costs. 11. Learned counsel appearing on behalf of the Respondents enclosed a copy of the advertisement published in the newspaper The Statesman, Kolkata on 24th July, 2018 wherein giving reference to the order dated 19th July, 2018, notice has been issued to the parties for winding up the company. It was intimated that the said petition is to be heard before the Hon ble Company Judge and the parties were asked to file their respective affidavits. 12. Learned counsel appearing on behalf of the Appellant- State Bank of India relied on The Companies (Court) Rules, 1959 and submitted that after advertisement of the petition an order appointing Provisional Liquidator is required to be passed in F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court such cases have not been transferred to National Company Law Tribunal, pursuant to Companies (Transfer of Pending Proceedings) Rules, 2016 , framed by the Central Government. 30. Clause (d) of Section 11 refers to liquidation order , against a Corporate Debtor. The word winding up has not been mentioned therein. For the said reason by Section 255 read with Schedule 11 of the I B Code, in Section 2 of the Companies Act, 2013 for clause (23), the following clause has been substituted : 1. In section 2,- (a) for clause (23), the following clause shall be substituted, namely:- xxx xxx xxx (23) Company Liquidator means a person appointed by the Tribunal as the Company Liquidator in accordance with the provisions of section 275 for the winding up of a company under this Act ; (b) after clause (94) , the following clause shall be inserted, namely:- (94A) winding up means winding up under this Act or liquidation under the Insolvency and Bankruptcy Code, 2016, as applicable. 31. By aforesaid amendment, the legislatures have made it clear that the word winding up mentioned in the Companies Act, 2013 is synonymous to the word liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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