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TMI Blog2024 (5) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... teria to Section 583 of the old Companies Act, 1956. Reference can be invited to the decision of the Supreme Court in the case of Rajah of Vizianagram v. Official Receiver and Official Liquidator [ 1961 (11) TMI 34 - SUPREME COURT] wherein Section 270 of the Companies Act, 1930 came up for consideration, which defines unregistered company , as also Section 271 of the said Act which provides for winding up of an unregistered company. Suffice to state that Section 270 and 271 of the 1930 Act are in pari materia as the provisions of Section 582 and 583 of the 1956 Act respectively. The decision of the Supreme Court in Action Ispat [ 2020 (12) TMI 535 - 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 - DELHI HIGH COURT] wherein it was held that winding up proceedings pending before High Courts, which are at a nascent stage and have not progressed to an advanced stage, ought to be transferred to the NCLT. It is but evident that the present company petition has not yet reached an advanced stage and no substantive orders have been passed towards the winding up of the respondent compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... $ 66,957.34/-. 4. It appears that the respondent company repeatedly gave assurances to the petitioner company that the payment of outstanding dues would be made at the earliest. However, despite several reminders, the respondent company failed/neglected to discharge its liability, and consequently, the petitioner company was constrained to serve a statutory legal notice dated 15.10.2015 under Section 434 of the Act, calling upon the respondent company to make good the payment of US$ 723,193.03 along with interest @ 18% per annum with effect from the dates of the respective invoices raised. It is stated that the said legal notice was received by the respondent company on 23.10.2015, and yet they did not respond to the same, nor did the respondent company comply with the demand raised therein and failed/neglected to pay the sum demanded. 5. On a perusal of the record, it is borne out that the present company petition was admitted vide order dated 14.08.2018, and the Official Liquidator attached to this Court was appointed as the Liquidator of the respondent company. However, subsequent to this, no substantive orders have been passed in furtherance of winding up of the respondent co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e when the petition for winding up the partnership, association or company, as the case may be, is presented before the 1 [Tribunal]. 1. Substituted for "Court" by the Companies (Second Amendment) Act, 2002 (w.e.f. a date yet to be notified)" 8. In order to determine whether or not the present winding up petition is maintainable, it would be expedient to consider the relevant provision, being Section 583 of the Companies Act, 1956, which provides for the winding up of unregistered companies, and is reproduced herein under: "583. WINDING UP OF UNREGISTERED COMPANIES (1) Subject to the provisions of this Part, any unregistered company may be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in sub-sections 1 [(3)] to (5). (2) 2 [* * * ] (3) No unregistered company shall be wound up under this Act voluntarily [by the Tribunal]. (4) The circumstances in which an unregistered company may be wound up are as follows : (a) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an unregistered company may be wound up are indicated vide sub-clause (4) to Section 583 of the Companies Act. A fortiori, since the respondent company has been unable to pay its debts, winding up proceedings against the company are clearly maintainable. Incidentally, even an unregistered company is amenable or subject to winding up proceedings under Part-II comprising of Section 375 of the newly enacted Companies Act, 2013 and sub-Clause 3(b) is pari materia to Section 583 of the old Companies Act, 1956. 10. In taking the above view, reference can be invited to the decision of the Supreme Court in the case of Rajah of Vizianagram v. Official Receiver and Official Liquidator 1962 Supp (1) SCR 344 wherein Section 270 of the Companies Act, 1930 came up for consideration, which defines "unregistered company", as also Section 271 of the said Act which provides for winding up of an unregistered company. Suffice to state that Section 270 and 271 of the 1930 Act are in pari materia as the provisions of Section 582 and 583 of the 1956 Act respectively. It would be expedient to quote the relevant observations made therein, which are reproduced as under:- "15. The courts of a country d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view was taken by the Calcutta High Court in the case of Deutsche Dampshiffshrts Gessellschaft "Hansa" Bremen v. Bharat Aluminium Co. Ltd. 1983 SCC OnLine Cal 216. 12. In view of the above, while it is the opinion of this Court that the present winding up petition is maintainable against the respondent company, since these proceedings are still at a nascent stage and no substantive orders have been passed towards the winding up of the respondent company, it would be appropriate for the same to be transferred to the National Company Law Tribunal [NCLT]. 13. In this regard, it would be expedient to consider that during the pendency of the present petition the Insolvency and Bankruptcy Code, 2016 [IBC] has been enacted, along with the introduction of Companies Act, 2013. It is necessary to consider Section 434 of the said Act, 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 (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959." 14. Reliance must also be placed on the decision of the Supreme Court in Action Ispat and Power Private Limited v. Shyam Metalics and Energy Limited (2021) 2 SCC 641, the relevant extract of which is provided below: "22. Given the aforesaid scheme of winding up under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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