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TMI Blog2023 (10) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... CO.PET.156/2014 SUDHIR ANAND v. OCTAGON BUILDERS & PROMOTERS 3 CO.PET.157/2014 MUKESH KUMAR v. OCTAGON BUILDERS & PROMOTERS 4 CO.PET.168/2014 DEEPAK MITTAL v. OCTAGON BUILDERS & PROMOTERS & ANR. 5 CO.PET.169/2014 C P SHARMA v. OCTAGON BUILDERS & PROMOTERS & ANR. 6 CO.PET. 170/2014 AJAY KAPUR v. OCTAGON BUILDERS & PROMOTERS & ANR. 7 CO.PET. 212/2014 MRS. SIKHA KAUSHAL v. OCTAGON BUILDERS & PROMOTERS 8 CO.PET. 290/2014 ALANKAR PATHAK & ANR. v. OCTAGON BUILDERS & PROMOTERS & ANR. 9 CO.PET. 147/2014 UMA SHARMA v. OCTAGON BUILDERS & PROMOTERS & ANR 3. This Court had, vide order dated 27th August, 2018 appointed the liquidator in CO.PET.147/2014 in the following terms: "I, accordingly, admit the present petition. The Official Liquidator attached to this Court is appointed as the Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent company forthwith. The citations be published in the Delhi editions of the newspapers 'Statesman' (English) and 'Veer Arjun' (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication of Rs.75,000/- will be pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "1. Ld. Counsel representing the IRP submits that the present IA No.193/2019 has been filed for payment of the professional fees to be paid to the IRP. He further submits that except for the initial amount which was paid to the IRP, no further expenses towards the CIRP cost have been released to the IRP. 2. It is also pointed by him that as per the order dated 27th August, 2018 passed by the Hon'ble Delhi High Court, the respondent company has already been ordered to be wound up. He further undertakes to file the latest status report with respect to the matter pending before the Hon'ble Delhi High Court. 3. With respect to the payment of the fee/CIRP cost to the IRP, let the notice be issued to the Operational Creditor through the Ld. Counsel representing the Operational Creditor. 4. The matter to come up on 1st November, 2023 for further hearing along with other IAs." 8. During the pendency of this petition, the Insolvency and Bankruptcy Code, 2016 has been enacted and pending proceedings under Section 434 of the Companies Act, 1956 are to be transferred to the National Company Law Tribunal (NCLT). The said section reads as under: "434. Transfer of certain pending proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by advertisement has been given under sub-section (1) of section 485 of the Companies Act, 1956 but the Company has not been dissolved before the 1st April, 2017 shall continue to be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959." 9. The issue of transfer of winding up petitions to the NCLT has been dealt with in the notification dated 7th December, 2016 passed by the Ministry of Corporate Affairs where in respect of pending proceedings for winding up, Rule 5 states as under:- "5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts. (1) All petitions relating to winding up under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Act, exercising territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of the Code, as the case may be, and dealt with in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2013, it is clear that several stages are contemplated, with the Tribunal retaining the power to control the proceedings in a winding up petition even after it is admitted. Thus, in a winding up proceeding where the petition has not been served in terms of Rule 26 of the Companies (Court) Rules, 1959 at a pre-admission stage, given the beneficial result of the application of the Code, such winding up proceeding is compulsorily transferable to the NCLT to be resolved under the Code. Even post issue of notice and pre admission, the same result would ensue. However, post admission of a winding up petition and after the assets of the company sought to be wound up become in custodia legis and are taken over by the Company Liquidator, section 290 of the Companies Act, 2013 would indicate that the Company Liquidator may carry on the business of the company, so far as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court staying its hands on a transfer application made to it by a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TERS & ANR. 7 CO.PET. 212/2014 MRS. SIKHA KAUSHAL v. OCTAGON BUILDERS & PROMOTERS 8 CO.PET. 290/2014 ALANKAR PATHAK & ANR. v. OCTAGON BUILDERS & PROMOTERS & ANR. 16. The order dated 27th August, 2018 appointing the Liquidator is recalled. The present petition is transferred to the NCLT. The claimant in this petition is free to pursue its claim before the NCLT. 17. List before the NCLT Allahabad Bench on 1st November, 2023. 18. It is made clear that any transactions carried out post the filing of these petitions would be liable to be dealt with in accordance with law by the NCLT. The said transactions would also not prejudice the interest of the Petitioners. 19. The electronic records of this Court shall be transmitted to the Registrar NCLT within one week along with a copy of today's order. 20. The petition, along with all pending applications, is disposed of in the above terms. CO.APPL. 301/2023 (for impleadment) 21. This is an application for impleadment which has been filed by Mr. Naresh Kumar Dhawaria, who also has a claim against the company in liquidation. In view of the order passed above, the said applicant is also permitted to appear before the NCLT and pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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