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TMI Blog2019 (3) TMI 1684X X X X Extracts X X X X X X X X Extracts X X X X ..... er Insolvency and Bankruptcy Code will not be maintainable only if order of winding up of the Company is passed by Hon'ble High Court. In this case, Hon'ble High Court admitted the Petition for winding up of the Corporate Debtor. No doubt Provisional Liquidator is also appointed but final order of winding up has not been passed and Official Liquidator has not been appointed - It is settled law as declared by the Apex Court that the proceeding under I B Code will not be maintainable only if final order of winding up is passed by the High Court - this application filed by Financial Creditor under Section 7 of Insolvency and Bankruptcy Code is maintainable. Application admitted - moratorium declared. - CP(IB) No. 378/KB/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other creditors. Hon'ble Calcutta High Court also appointed Provisional Liquidator. The Corporate Debtor is restrained from dealing in any manner with any of its assets. Hence, this application under Section 7 of Insolvency and Bankruptcy Code is not maintainable. 4. I have gone through the record and proceeding of the case. I heard Mr. Arnab Dutta, Ld. Counsel for the Financial Creditor and Mr. Anirudha Mitra, Ld. Counsel for the Corporate Debtor. 5. Ld. Counsel for Financial Creditor submitted that the Corporate Debtor did not dispute the debt and its default. As far as maintainability of this application is concerned, Ld. Counsel submitted that now in numbers of Rulings and Orders, the Hon'ble Apex Court, other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 12023 of 2018), held that, it is clear that Respondent no. 3 has filed a Section 7 application under the Code on 11.01.2018 on which an order has been passed admitting such application by NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent no. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from reading of Section 7 together with Section 238 of the Code which read as follows:- 238. Provisions of the Code to override other laws.- The Provisions of this Code shall have effect, notwithstanding Anything inconsistent therewith c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot maintainable. However, mere pendency of a petition for winding up, where no order of winding up or order of liquidation has been passed, cannot be ground to reject the application under Section 10. 9. Even NCLT (Principal Bench), New Delhi in case of Union Bank of India Vs. Era Engineering Ltd. {(IB)-190(PB)/2017}, it has been held that It is in view of the aforesaid binding precedents and the principles of stare decisis that we answer the first question in affirmative. Thus there is no bar on NCLT to trigger the Insolvency Resolution Process on an application filed under Sections 7, 9 10 if a winding up petition is pending unless an Official Liquidator has been appointed and a winding up order is passed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/S Avani Projects Infrastructure Ltd. is hereby admitted. ii) I declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix) Necessary public announcement as per Section 15 of the IBC, 2016 may be made. x) Mr. Ajay Kumar Agarwal, IP Registration No. IBBI/IPA-002/IPN0068/2018-2019/11859, residing at Ambey Garden, Block 1, Flat 3C, 3 rd Floor, Banglaxmi Abasan, Dashadrone Checkpost, Rajarhat Main Road, Kolkata, West Bengal 700136, E-mail ID: [email protected] is appointed as Resolution Professional for ascertaining the particulars of creditors and conveni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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