Delhi High Court - Orders
Nitya Kukreja vs Abw Infrastructure Limited on 12 February, 2021
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~6 (company matter)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 449/2016
NITYA KUKREJA ..... Petitioner
Through Mr. Manish Kaushik, Adv. for
applicant in CA 129/2021
Ms. Mani Gupta, Adv. for
Resolution Professional in CA
186/2020
Mr. Nikhil Nayyar, Sr.
Advocate with Ms. Divyanshu
Rai, Adv. for applicant in CA
16/2019
Versus
ABW INFRASTRUCTURE LIMITED ..... Respondent
Through Mr. Kunal Sharma, Adv. for the
Official Liquidator
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 12.02.2021 CA 186/2020 in CO.PET. 449/2016
1. This application seeks transfer of proceedings to the National Company Law Tribunal and relies, for the said purpose, on the judgment of the Supreme Court in Action Ispat and Power Pvt. Ltd. v. Shyam Metalics and Energy Ltd.1, especially on para 22 of the judgment (as per the copy contained on the website of the Supreme Court), which reads thus:
"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 1 Signature Not Verified 2020 SCC OnLine SC 1025 Digitally Signed CO.PET. 449/2016 Page 1 of 2 By:SUNIL SINGH NEGI Signing Date:18.02.2021 10:24:21 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 pre-admission 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 transfer application made to it by a creditor or any party to the proceedings. It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT 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."
2. Mr. Kunal Sharma, learned counsel for the Official Liquidator, submits that the issue is purely legal, and he would address arguments on this aspect without filing a formal reply to the application.
3. Renotify for hearing and disposal of the application on 19th February, 2021.
C.HARI SHANKAR, J FEBRUARY 12, 2021 r.bararia Signature Not Verified Digitally Signed CO.PET. 449/2016 Page 2 of 2 By:SUNIL SINGH NEGI Signing Date:18.02.2021 10:24:21