Delhi High Court
Nitya Kukreja vs Abw Infrastructure Limited on 4 July, 2018
$~CP-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 04.07.2018
+ CO.PET. 449/2016
NITYA KUKREJA ..... Petitioner
Through Ms.Rekha Dwivedi, Adv.
versus
ABW INFRASTRUCTURE LIMITED ..... Respondent
Through Mr.Jeevesh Nagrath & Mr.Chitvan
Singhal, Advs.
Mr.Rajiv Buleshi, Adv. for proposed
intervenors.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CA No.726/2018
1. This application is filed by the applicant Sh.Brij Mohan Kapur under
section 434(1)(c) of the Companies Act, 2013 (hereinafter referred to as
'the Act, 2013') seeking to transfer the present proceedings to the Principal
Bench, NCLT, New Delhi. It may be noted that Mr.Brij Mohan Kapur, the
applicant is not a party to the present petition.
2. It has been pleaded that under the Insolvency and Bankruptcy Code
(Amendment) Ordinance, 2018 No.6 of 2018 which was promulgated on
06.06.2018, an amendment has been inserted in the Companies Act which
permits the transfer of the proceedings pending before this court to the
NCLT. Reliance is placed on the said amendment, which reads as follows:
CO.PET.449/2016 Page 1
"39. In section 434 of the Companies Act, 2013, [as substituted
by paragraph 34 of the Eleventh Schedule to the Insolvency and
Bankruptcy Code, 2016], in sub-section (1), in clause (c), after
the proviso, the following proviso shall be inserted, namely:-
"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."
3. A perusal of the above provision would show that it provides that
proceedings relating to the winding up of companies pending before any
court immediately before commencement of Insolvency and Bankruptcy
Code (Amendment) Ordinance, 2018, the applicant may file an application
for transfer of such proceedings to the Tribunal.
4. In this case, the court had on 29.05.2018 passed the following order:
"12. Keeping in view the above, the petition is admitted and
the Official Liquidator attached to this Court is appointed as the
Liquidator. He is directed to take over all the assets, books of
accounts and records of the respondent-company forthwith. The
citations be published in the Delhi editions of the newspapers
„Statesman‟ (English) and „Veer Arjun‟ (Hindi), as well as in
the Delhi Gazette, at least 14 days prior to the next date of
hearing. Publication will be carried out by the petitioner. The
Official Liquidator shall also endeavour to prepare a complete
inventory of all the assets of the respondent-company when the
same are taken over; and the premises in which they are kept
shall be sealed by him. OL is also authorised to break open the
locks of the office of the respondent company in case the need
CO.PET.449/2016 Page 2
arises. At the same time, he may also seek the assistance of a
valuer to value all assets to facilitate the process of winding up.
It will also be open to the Official Liquidator to seek police help
in the discharge of his duties, if he considers it appropriate to do
so. The Official Liquidator to take all further steps that may be
necessary in this regard to protect the premises and assets of the
respondent-company.
13. However, keeping in view the averments of the learned
counsel for the respondent in the interest of justice, I suspend
the aforesaid order appointing the Provisional Liquidator for a
period of four weeks. In case necessary payments are not made
to the petitioner within the said period of four weeks, the
aforesaid order shall become operational. It is also made clear
that the respondent shall not operate their bank accounts or deal
with their movable and immovable assets in any manner
whatsoever in this period of four weeks."
5. Admittedly, the respondent has not taken any steps for payment of the
dues of the various petitioners. Hence, the order appointing the OL as the
liquidator came into operation on expiry of four weeks from 29.05.2018.
The present application has now been filed on 02.07.2018. As the OL has
already been appointed as the Liquidator and the assets are custodia legis, it
is not possible to transfer the case to NCLT.
6. I may also note that the applicant is not a party to the present
proceedings. This is a bunch of proceedings which are being heard together
against the respondent Company. They are in all 18 such petitions which are
listed today. Learned counsel appearing for petitioners have vehemently
opposed the present application pointing out that they would prefer that this
court may continue the liquidation proceedings which have already been
commenced.
7. In my opinion, the court has already ordered for winding up of the
CO.PET.449/2016 Page 3
respondent Company and hence, the application cannot be considered. Even
otherwise, keeping in view the objections of the petitioners, I do not deem it
appropriate to transfer this petition to NCLT. The application is accordingly
dismissed.
8. The OL will ensure appropriate steps are taken to take over the assets,
books of accounts and the records of the respondent Company and will
ensure compliance of order dated 29.05.2018
CO.PET. 449/2016
9. List on 26.07.2018 for direction.
JAYANT NATH, J.
JULY 04, 2018/v
CO.PET.449/2016 Page 4
