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TMI Blog2024 (5) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... this court that the present petition does not deserve to continue before this Court, and it would be appropriate for the same to be transferred to the National Company Law Tribunal. It would also be expedient to place reliance on the decision of the Supreme Court in the case titled ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [ 2020 (12) TMI 535 - SUPREME COURT] , whereby it was held that those winding up proceedings pending before High Courts, which have not progressed to an advanced stage, ought to be transferred to the NCLT. This above noted decision of the Supreme Court has been relied upon by this court in Citicorp International Limited v. Shiv Vani Oil Gas Exploration Services Limited [ 2023 (7) TMI 1188 - DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a clause for escalation of rent @ 5% per year. 3. It is the case of the petitioner that the respondent company has been a serial defaulter in making payments of the due rent and that the cheques issued at the behest of the respondent company have been dishonored on presentation on various occasions, bearing the remarks of 'Stop Payments and 'Insufficient Funds . In view of the same, the petitioner company served a legal notice dated 08.03.2015 upon the respondent company and thereafter initiated proceedings against them under Section 138 of the Negotiable Instruments Act, 1881. 4. It has been further stated that consequent to the perpetual default in payment of rent, the petitioner initiated proceedings under Section 13 of the Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, and it would be appropriate for the same to be transferred to the National Company Law Tribunal NCLT . In this regard, due consideration of Section 434 of the Companies Act, 2013 is necessary, which provides for the transfer of proceedings relating to winding up, pending before High Courts, to the NCLT, and reads as under: 434. Transfer of certain pending proceedings. (1) On such date as may be notified by the Central Government in this behalf, (a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10E of the Companies Act, 1956 (1 of 1956), immediately before such date shall stand transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act, 1956 other than the cases relating to winding-up of companies that are reserved for orders for allowing or otherwise such proceedings; or (ii) the proceedings relating to winding-up of companies which have not been transferred from the High Courts; shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959: [Provided also that proceedings relating to cases of volunlary winding up of a company where notice of the resolution 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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