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Gauri Gaekwad 





                                              11/53                               CA-572-2017.doc1.




17                 The power of this Court to pass order to restrain proceedings 

before any other Court is under Section 446. The provisions of IBC, by virtue of Section 238 of IBC will override the provisions of the Companies Act to that extent.

18 Further, the powers of this Court, while acting as a Company Court under Companies Act, 1956, is in exercise of its ordinary and original jurisdiction and not any extraordinary or inherent jurisdiction. In furtherance thereto, while acting so, this Court will not have jurisdiction to stay the proceedings before NCLT. In fact, both the Company Court as well as NCLT are created under the provisions of Companies Act, 2013 itself. In order to support this contention, reference may be made to the judgment of Official Liquidator, Uttar Pradesh v. Allahabad Bank and Ors.19. 19 In the matter of M/s. Innoventive Industries (Supra), the Hon'ble Apex Court, after considering the provisions of IBC, more particularly Section 238, came to a conclusion that even Statutory Injunction under Maharashtra Relief Undertaking Act (MRU Act) will not come in the way of Secured Creditor to initiate proceedings under IBC. 20 Similar overriding provision came up for consideration of Hon'ble Supreme Court in the matter of Jagdish Singh Vs. Heeralal & Ors.20 where the Apex Court has held that the provision of SARFAESI Act,

(II) Non-obstante provision under Section 238 of IBC not applicable:

29 The provisions of the 1956 Act are not inconsistent with the provisions of IBC in so far as the Saved Petitions are concerned and therefore, the provisions of IBC do not override the provisions of the 1956 Act under Section 238 of IBC.

30 Upon demurrer, that there is no bar against the proceedings continuing simultaneously before the High Court under the 1956 Act and Gauri Gaekwad 19/53 CA-572-2017.doc1.

NCLT under IBC and that Section 238 of IBC, as relied upon by respondent-applicant, has no application in this present case. 30.1 In the matter of M/s. Ashok Commercial Enterprises (Supra), it has been, inter alia, held that -

"62. In my view, it is clear that all winding up proceedings shall not stand transferred to the NCLT. It is clear that if the service of the notice of the Company Petition under Rule 26 of the Companies (Court) Rules, 1959 is not complied before the 15th December 2016 such Petitions shall stand transferred to NCLT whereas all other Company Petitions would continue to be heard and adjudicated upon only by the High Court. The Legislative intent is thus clear that two sets of winding up proceedings would be heard by two different forum i.e. one by NCLT and another by the High Court depending upon the date of service of Petition before or after 15th December 2016. In my view, there is thus, no embargo on this Court to hear this Petition along with other companion Petitions, in view of the admitted position that the notice under Rule 26 of the Companies (Court) Rules, 1959 has been served on the respondent prior to 15th December 2016.

Gauri Gaekwad 





                                                     44/53                                    CA-572-2017.doc1.




75               The   jurisdiction   of   the   Company   Court   in   relation   to 

proceedings under IBC is expressly barred by virtue of section 63 of IBC. Further, by virtue of Section 64(2) of IBC, the Company Court is prohibited from injuncting NCLT from exercising its jurisdiction under IBC. By virtue of section 238 of IBC, it overrides the provisions of the Companies Act, 1956. The Apex Court has, in a few cases, considered provisions similar to Section 64 (2) of IBC. In GhanshyamSarda v. Shiv Shankar Trading Company (supra), the Hon'ble Supreme Court considered the bar of the Civil Court's jurisdiction under the Sick Industrial Companies Act, 1985 ("SICA"), Insolvency and Bankruptcy Code, 2016 Sick Industrial Companies Act, 1985