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10. Learned counsel for the respondent placed reliance on the judgment of this court in case of JM Financial Asset Reconstruction Company Pvt. Ltd. vs. State of Maharashtra, 2016 SCC Online Bom 9099 and in particular paragraphs 33, 35, 36 and 42. He placed reliance on the preamble of the Insolvency and Bankruptcy Code, 2016 and submits that the purpose of winding up is a public purpose. He also placed reliance on sections 439, 439A, 440, 441, 441A, 446, 448, 454 and 455 of the Companies Act, 1956 and would submit that there is direct conflict between these provisions of the Companies Act, 1956 with the provisions kvm CP136.14 of Insolvency and Bankruptcy Code, 2016.

19. Learned senior counsel placed reliance on the order passed by Shri Justice S.C.Gupte on 23rd December 2016 in Company Petition No.331 of 2016 in the case of West Hills Realty Private Limited Vs. Neelkamal Realtors Tower Pvt. Ltd. and clarificatory order dated 17th January 2017. He submits that this Court has already interpreted the provisions of the Insolvency and Bankruptcy Code, 2016 and also Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 and has clearly held as to which winding up proceedings shall be heard by the Company Court and which proceedings shall stand transferred to the NCLT. He submits that admittedly in this case, the service of the notice was served upon the respondent much prior to the 15 th December 2016 and thus these proceedings can be heard only by this Court and not by the kvm CP136.14 NCLT. He submits that thus the provisions of the Companies Act, 1956 would apply to this petition and not the provisions of the Insolvency and Bankruptcy Code, 2016.

63. In my view, since there is no inconsistency in the provisions of the kvm CP136.14 Insolvency and Bankruptcy Code, 2016 and the Companies Act, 2013 or Companies Act, 1956 in respect of the jurisdiction of the Company Court or of the NCLT insofar as winding up proceedings are concerned, reliance placed by Mr. Andhyarujina, the learned Counsel appearing for the respondent on Section 238 of the Insolvency and Bankruptcy Code, 2016 is totally misplaced. The effect of non obstante provision if any in Section 238 of the Insolvency and Bankruptcy Code, 2016 would have been significant only if there would have been conflict in aforesaid provisions and not otherwise. In my view, Mr. Sen, the learned Counsel appearing for the petitioner is right in his submissions that Section 238 of the Code has no application in this situation on the ground that there is no conflict between the provisions of the Code and the provisions of the Companies Act, 1956 or the Companies Act, 2013.

72. The only argument advanced by the learned counsel for the respondent to postpone the hearing of this company petition along with other companion proceedings, was invoking provisions of Insolvency & Bankruptcy Code, 2016. Admittedly the NCLT has not passed any order of declaration of moratorium and has not made any public announcement under section 13 of the Insolvency & Bankruptcy Code, 2016 for the purpose referred to in section 14. The company petition filed by the ICICI Bank Limited against the respondent is kvm CP136.14 not even admitted. It is not in dispute that the respondent is not disputing that the respondent is a defaulter in that matter as stated by Mr.Andhyarujina, learned counsel for the respondent before this Court. The said company petition filed by ICICI Bank Limited against the respondent is not for seeking a declaration of moratorium for the purpose referred to in section 14 and for the appointment of any interim resolution professional but is filed for winding up of the respondent. It is thus clear that the said ICICI Bank Limited is also not supporting the case of the respondent but may pursue the said petition and to take the same to its logical conclusion.