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TMI Blog2025 (2) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds of its inability to pay its debts to the petitioner company - COWI India Pvt Ltd. 2. The matter has been pending adjudication before this Court, and the respondent has now sought a transfer of the matter to the National Company Law Tribunal ('NCLT'), Delhi Bench. 3. In view of the same, by order dated 31.07.2024, this court called upon the petitioner to make submissions as to why the present matter should not be transferred to the NCLT. 4. The learned counsel for the petitioner opposes the transfer to the NCLT and places reliance on the judgment of the Calcutta High Court in Abhijeet Projects Ltd. v. Yogesh Khanna : 2023 SCC OnLine Cal 2357, where it was held that a petition cannot be transferred to the NCLT suo motu unless an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act, 1956, at a stage where no irreversible steps have been taken towards liquidation, can and should be transferred to the NCLT at the instance of the respondent. 10. The learned counsel for the petitioner resists the transfer, arguing that a formal application is necessary for such a transfer, relying on the decision in Abhijeet Projects Ltd. v. Yogesh Khanna (supra). The learned counsel for the respondent, on the other hand, contends that this Court has the inherent jurisdiction to transfer the matter, even suo motu, if warranted in the interests of justice, as per the ruling in Gurbakhsh Singh BA, Builders P. Ltd. v. Fortis Hospital Ltd. : 2024 SCC OnLine Del 3480. 11. Upon an examination of the record, it is evident that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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; (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 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for initiation of corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 (31 of 2016). (2) The Central Government may make rules consistent with the provisions of this Act to ensure timely transfer of all matters, proceedings or cases pending before the Company Law Board or the courts, to the Tribunal under this section." 13. The aforesaid provision has been interpreted by the Hon'ble Apex Court in the case titled Action Ispat and Power P. Ltd. v. Shyam Metalics and Energy Ltd. : (2021) 2 SCC 641, wherein it was held that those winding up proceedings pending before the High Courts, which have not progressed to an advanced stage, ought to be transferred to the NCLT. The relevant extract of the said decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack that the company court must proceed with the winding up, instead of transferring the proceedings to the National Company Law Tribunal to now be decided in accordance with the provisions of the Code. Whether this stage is reached would depend upon the facts and circumstances of each case." 14. In the opinion of this court, the present matter is squarely covered by the decision in Gurbakhsh Singh BA, Buliders (P) Ltd. v. Fortis Hospital Ltd., (supra), where this Court extensively considered the applicability of Section 434 of the Companies Act, and the transfer of pending winding-up petitions to the NCL. It was held as under : "13. Thus, what follows is that the entire statutory scheme in respect of winding up of companies, as also a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide two of these transfers, holding that a winding-up petition cannot be transferred in the absence of a formal application by an interested party and that the Single Judge had exceeded jurisdiction by directing the transfer without any request from the parties involved. However, in one instance, the Bench upheld the transfer, observing that secured creditors had expressly consented to the transfer and there was no substantial progress in the liquidation proceeding, and thus, filing a formal application in such a case would be a mere formality. The Court clarified that where parties explicitly seek transfer or indicate their consent, the absence of a formal application should not be an impediment, as the transfer serves the broader objectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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