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TMI Blog2024 (2) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... ROUND: CO. PET. 981/2015 2. Briefly stated, the petitioner company placed a Purchase Order with the respondent company on 27.02.2012 for the supply of Spiral Drill Collars and Spiral Heavy Drill Pipes for a total amount of USD 573,012/-. Thereafter, on 19.03.2012 in furtherance of the Purchase Order and per the terms of the agreement, the petitioner paid an advance of 30% of the Purchase Order value, amounting to USD 171,903/-, receipt of which was confirmed by the respondent company vide email dated 20.03.2012. 3. However, the respondent company failed to supply the goods, consequent to which the petitioner company terminated the Purchase Order vide letter dated 22.11.2012 as well as email dated 25.11.2012, and sought a refund of the advance payment from the respondent company. The termination of the Purchase Order was acknowledged by the respondent company vide email dated 27.11.2012. 4. Despite repeated reminders and follow ups, the respondent company neglected to repay the advance amount paid by the petitioner company, as a result of which the petitioner company was constrained to serve a statutory legal notice under Section 433 and 434 to the respondent company on 15.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the respondent company has failed to pay the outstanding amount, in view of the order of this court dated 07.02.2018, the petition stands to be admitted. Secondly, it has also been submitted that notice of this petition had been issued on 01.02.2016. Therefore, in keeping with Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, which provides that only those petitions which have not been served shall be transferred to the National Company Law Tribunal [NCLT]; the present petition stands to be admitted by this court since notice has already been issued. 11. Per contra, it has been submitted on behalf of the respondent company that the present petitions stand to be transferred to the NCLT since nothing irreversible has been done in the winding up proceedings. In furtherance of the same, reliance has been placed on the decision of the Supreme Court in Action Ispat and Power Pvt. Ltd. v. Shyam Metalics and Energy Ltd. (2021) 2 SCC 641. ANALYSIS & DECISION 12. At the outset, it is apposite to note that these winding up proceedings are a complete non-starter. On a perusal of the record, it appears that not even a Provisional Liquidator is appointed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court may if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days; and (c) all proceedings under the Companies Act, 1956 (1 of 1956), including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer: Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government. Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal [Provided also that]- (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter XX of the Companies Act, 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 preadmission 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 transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to appear before the NCLT on 01.04.2024. 23. The electronic records of this Court shall be transmitted to the Registrar NCLT within one week along with a copy of today's order. 24. Hence, the present company petitions, along with all pending applications, are disposed of accordingly. CCP(CO.) 24/2016 & CO. APPL. 128/2021 25. This contempt petition has been preferred by the petitioner under Sections 11 and 12 of the Contempt of Courts Act, 1971 [CC Act], against the respondent - Mr. Anil Wahal, director of M/s Interdril Asia Limited, for non-compliance with the order of this court dated 12.02.2016, passed in CO. PET. No. 666/2014. 26. Briefly stated, the petitioner company had filed CO. PET. 666/2014 seeking winding up of M/s. Interdril Asia Limited, which came to be disposed of vide order dated 12.02.2016 passed by this court, on the basis of a settlement arrived at between the parties. The settlement was placed before this court vide an application bearing CA No. 466/2016 dated 09.02.2016, moved by the parties under Order 23 Rule 3 and Rule 9 read with Section 151 of the CPC, as per which the respondent was to repay a sum of USD 299,384/- in 11 monthly instalments a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is court which came to be recorded in the order dated 30.08.2019 in CO. PET. 981/2015 and order dated 02.09.2019 in the present contempt petition, amounts to contempt, and proceedings under the Contempt of Courts Act shall be initiated against the respondent. 31. Per contra, it has been submitted on behalf of the respondent that the non-compliance with the order dated 12.02.2016 was neither wilful nor intentional, and failure to make payments towards the outstanding amount due to the petitioner was on account of reasons beyond the control of the respondent. It is stated that to show bonafides, the respondent made a payment of USD 10,000/- by arranging funds through personal loans. 32. It has further been submitted that the respondent has made all attempts to revive the respondent company, by arranging attempts to infuse funds through an Asset Reconstruction Company, namely Invent ARC Pvt. Ltd. In furtherance of the same, the respondent also persuaded its bank - Oriental Bank of Commerce, to agree for a OneTime Settlement (OTS) to the tune of Rs. 24 Cr, by way of assignment of its debt to Invent ARC Pvt., Ltd. However, this OTS failed and a dispute arose with regard to the release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contempt proceedings must demonstrate a wilful and intentional disobedience of an order or direction of the Court. Avoiding a long academic discussion, it was propounded in the case of U.N. Bora v. Assam Roller Flour Mills Assn. (2022) 1 SCC 101:- (i) "It should be shown that there was due knowledge of the order or directions and that the disobedience is a deliberate, conscious and intentional act. (ii) When two views are possible, the element of wilfulness vanishes as it involves a mental element. (iii) Since the proceedings are quasi-criminal in nature, what is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. (iv) When a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971." 37. Therefore, the proposition of law is established that disobedience of the orders of the Court have to be shown to be 'wilful', such that there lies a certain mental element, and that such inaction or disobedience is done knowingly, intentionally, consciously and in a ..... 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