Beruflich Dokumente
Kultur Dokumente
VERSUS
JUDGMENT
ROHINTON F. NARIMAN, J.
continue with a winding up petition that has been filed by the said creditor
way back in 2014. The facts relevant for disposal of this appeal are as
follows:-
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Delhi. Further orders which have been pointed out to us by learned
counsel for the appellant, have gone on to state that there is a debt or
3. It was also pointed out by learned counsel for the appellant that a
Board for Industrial and Financial Reconstruction (BIFR) under the Sick
Industrial Companies Act, 1985, which, according to the learned counsel for
operational creditor, viz., SKF India Ltd. had filed an application under
Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short ‘the Code’),
petition which would then be heard along with the Company Petition No.
42/2014.
same corporate debtor, moved the National Company Law Tribunal (NCLT)
aforesaid order, an appeal was filed by the appellant herein which was
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referred to, and it was held by the Appellate Tribunal that since there was
been dismissed.
painstakingly taken us through the record, and has referred to the Code,
exercise of powers under Section 239 of the Code, have made Rules called
the Code and has argued before us that the winding up petition that had
been preferred by her would clearly fall within the ambit of Rule 5 of the
(Court) Rules had been served much prior to the commencement of the
Code. This being the case, this winding up petition should, therefore, have
carried on and should be allowed to carry on before the High Court. The
proceedings before the High Court should continue and not proceedings
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6. Mr. Sanjiv Sen, learned senior counsel appearing on behalf of
all the relevant materials, statutory and otherwise, to state that the whole
object of the Code would be frustrated if petitions for winding up in the High
Court were to continue in the face of the insolvency petitions that have
objective of the Code is to infuse life into a corporate debtor who is in the
accordance with the provisions of the Code that liquidation takes place
under the Code. Keeping this in mind, it is obvious that the judgment of the
Appellate Tribunal can be sustained on the grounds argued by him and the
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“255. Amendments of Act 18 of 2013.- The Companies Act,
2013 shall be amended in the manner specified in the Eleventh
Schedule.”
effect from 01.12.2016. Section 434 of the Companies Act, 2013 was
substituted as follows:-
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(c) all proceedings under the Companies Act,
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.
(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.”
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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 voluntary 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 and the Companies (Court) Rules,
1959:
Provided further that any party or parties to any
proceedings relating to the winding up of
companies pending before any Court
immediately before the commencement of the
Insolvency and Bankruptcy Code (Amendment)
Ordinance, 2018, may file an application for
transfer of such proceedings and the Court may
by order transfer such proceedings to the
Tribunal and the proceedings so transferred
shall be dealt with by the Tribunal as an
application 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.”
(Emphasis supplied.)
10. When the Code was enacted with effect from 01.12.2016, two
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shall be dealt with in accordance with provisions of the
Companies Act, 1956 and the Companies (Court)
Rules, 1959””
substituted as follows:-
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such other petition shall not be transferred to the Tribunal, even
if the petition has not been served on the respondent.”
follows:
“FORM No. 6
(See Rule 27)
[Heading as in Form No. 1]
Company Petition No………………. of 19
NOTICE OF PETITION
(Advocate for
petitioner)
Address:
15. Shri Sen pointed out to us that there was a divergence of views in the
notice and hence, held that all winding up petitions where pre-admission
notices were issued and served on the respondent will be retained in the
High Court. On the other hand, the Madras High Court in M/s. M.K. &
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Sons Engineering v/s. Eason Reyrolle Ltd. in CP/364/2016 has held that
winding up petition and accordingly held that only those petitions where a
winding up order is already made can be retained in the High Court. For
this purpose, the Madras High Court strongly relied upon Form No. 6
16. We are of the view that Rules 26 and 27 clearly refer to a pre-
which make it clear that the notice contained in Form No. 6 has to be
served in not less than 14 days before the date of hearing. Hence, the
expression “was admitted” in Form No. 6 only means that notice has been
issued in the winding up petition which is then “fixed for hearing before the
Company Judge” on a certain day. Thus, the Madras High Court view is
plainly incorrect whereas the Bombay High Court view is correct in law.
17. The resultant position in law is that, as a first step, when the Code
the Code, the Government realized that parallel proceedings in the High
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Courts as well as before the adjudicating authority in the Code would
resuscitate the corporate debtors who are in the red. In accordance with
this objective, the Rules kept being amended, until finally Section 434 was
winding up petitions where notice has been served and which are pending
in the High Courts, any person could apply for transfer of such petitions to
the NCLT under the Code, which would then have to be transferred by the
petition under the Code. This statutory scheme has been referred to, albeit
Secretary Mr. Tej Ram Meena vs. Jaipur Metals & Electricals Ltd. Through
18. After referring to the statutory scheme, as aforesaid, this Court held:
“17. However, this does not end the matter. It is clear that
Respondent No. 3 has filed a Section 7 application under the
Code on 11.01.2018, on which an order has been passed
admitting such application by the NCLT on 13.04.2018. This
proceeding is an independent proceeding which has nothing to
do with the transfer of pending winding up proceedings before
the High Court. It was open for Respondent No. 3 at any time
before a winding up order is passed to apply under Section 7 of
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the Code. This is clear from a reading of Section 7 together with
Section 238 of the Code which reads as follows:
19. Mr. Sen also referred us to a judgment of the learned Single Judge of
the High Court of Bombay reported, in (2018) 2 AIR Bom R 350 in PSL
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Limited vs. Jotun India Private Limited. The Learned Single Judge, after
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20. This judgment was upheld by a Division Bench of the Bombay High
Court. We may hasten to add that the law declared by this judgment has
our approval.
21. The resultant position, therefore, is that we agree with the learned
counsel for the appellant that the Appellate Tribunal’s reasoning is not
correct. Section 11 of the Code specifies which persons are not eligible to
22. This Section is of limited application and only bars a corporate debtor
liquidation order has been made. From a reading of this Section, it does
not follow that until a liquidation order has been made against the corporate
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the case may be, as has been held by the Appellate Tribunal. Hence, any
23. Though, we are not interfering with the Appellate Tribunal’s order
under the proviso to Section 434 of the Companies Act (added in 2018), to
transfer the winding up proceeding pending before the High Court of Delhi
the Code.
…..........................J.
(R.F. Nariman)
...............................J.
(Navin Sinha)
Delhi,
Dated: January 22, 2019.
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