Gujarat High Court
Himanshu Harshad Choksi, Ex ... vs Basudev Sadh on 26 November, 2021
Bench: Bhargav D. Karia
C/COMA/83/2018 ORDER DATED: 26/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/COMPANY APPLICATION NO. 83 of 2018
With
R/COMPANY APPLICATION NO. 168 of 2013
With
R/COMPANY APPLICATION NO. 294 of 2013
In
COMPANY APPLICATION NO. 168 of 2013
With
R/COMPANY APPLICATION NO. 112 of 2015
In
COMPANY PETITION NO. 36 of 2006
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HIMANSHU HARSHAD CHOKSI, EX DIRECTOR OF CHOKSI TUBE CO.
LTD
Versus
BASUDEV SADH
==========================================================
Appearance:
IG JOSHI(8726) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 26/11/2021
ORAL ORDER
Heard learned Senior Advocate Mr.K.M.Patel
assisted by learned advocate Ms.Hina Desai,
learned Senior Advocate Mr.Gautam Joshi for
learned advocate Mr.I.G.Joshi, learned advocate
Mr.Aftabhusen Ansari, learned advocate Mr. P.C.
Chaudhari, learned advocate Mr. D.G. Chauhan and
learned advocate Mr. Jigar M. Patel for the
respective parties.
1.Company Application No.83/2018 is filed to
revive Company Petition No. 4 of 2003 which
C/COMA/83/2018 ORDER DATED: 26/11/2021
was disposed of by this Court (Coram :
Hon'ble Mr. Justice M.R.Shah) vide order
dated 11th September, 2006 on abetment of the
proceedings before the BIFR as per the
judgment and order dated 1st February, 2008
passed by this Court in OJ Appeal No.
101/2006.
2.Company Application No. 168 of 2013 is filed
seeking clarification that no permission for
implementation/execution of order dated 15th
May, 2008 passed by the Company Law Board is
necessary in view of stay of the winding up
proceedings.
3.Company Application No. 294 of 2013 is filed
seeking permission to amend the Judges
Summons and the memo of the Company
Application.
4.Company Application No.112 of 2015 is filed
to revive the winding up proceedings in the
terms of order passed by this Court in Civil
Application NO. 409 of 2006 in O.J. Appeal
No. 101 of 2006 dated 27th June, 2007 as the
proceedings before the BIFR are abated by
order dated 24th September, 2014.
5.In view of the above, the Company Petitions
would therefore, now be required to be heard
C/COMA/83/2018 ORDER DATED: 26/11/2021
on merits by considering the objections which
are raised by the respondents for admission
of the matter which are and which may be
raised by the respondents in future. It
appears that the matters have been adjourned
from time to time at the request of the
parties for one reason or another.
6.The Apex Court in case of Action Ispat and
Power Pvt. Ltd. V/s. Shyam Metalics and
Enerty Limited reported in 2021 2 SCC Page
641 has held as under:
"22. 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 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
preadmission 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
C/COMA/83/2018 ORDER DATED: 26/11/2021
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."
7.In view of the above, the respective Company
Petitions are revived and continued and the
captioned matters along with the respective
Company Petitions are hereby transferred to
the National Company Law Tribunal, Ahmedabad
Bench. Registry to forward the papers of the
above matters along with the respective
Company Petitions to the Tribunal within a
period of eight weeks from today along with
the order. Tribunal to do the needful in
accordance with law to proceed with the
matters from the stage from which they are
transferred. It is clarified that the
contentions and objections of the respective
parties are kept open to be raised before the
Tribunal in further proceedings.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
