Gujarat High Court
Fine Impex vs Ionik Castings Private Limited on 8 December, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/COMP/415/2016 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/COMPANY PETITION NO. 415 of 2016
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FINE IMPEX
Versus
IONIK CASTINGS PRIVATE LIMITED
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Appearance:
MANAN K PANERI(7959) for the Petitioner(s) No. 1
THAKKAR AND PAHWA ADVOCATES(1357) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 08/12/2023
ORAL ORDER
1. By way of this present company petition, the petitioner has
prayed for the following reliefs:-
(A) The Company, M/s. Ionik Castings Private Limited
having its registered office at Block No.275/B, Opp. Bharat
Aluminiun, Santaj - Vadsar Road, Taluka - Kalol, District -
Gandhinagar - 382 721 be ordered to be wound up by and under
the orders and directions and supervision of this Hon'ble Court
under the provisions of the Companies Act, 1956.
(B) The Official Liquidator, High Court OF Gujarat be
appointed as Liquidator of Company with all powers under section
457 of the Companies Act, 1956, including powers and authority to
take charge and take possession of the properties and assets of the
Company and deal with and to dispose of the same in accordance
with law.
(C) Pending admission hearing and final disposal of the
present petition, the Official Liquidator, High Court of Gujarat be
appointed as Provisional Liquidator on the assets, properties,
affairs and records with all the power under the Companies Act,
1956.
NEUTRAL CITATION
C/COMP/415/2016 ORDER DATED: 08/12/2023
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(D) Pending admission hearing and final disposal of the
present petition, the Company be restrained by an order and
injunction by this Hon'ble Court from dealing with/ or disposing of
and/ or parting with possession and/ or creating any third party
right, title, interest in respect of the assets and properties of the
Company.
(E) Award coat of the petition.
(F) Such other and further reliefs as deemed fit and proper in
the interest of justice be granted.
2. At the outset, learned advocate Mr. Manan K. Paneri for the
petitioner draws the attention of this Court that in view of
judgment of Hon'ble Supreme Court in case of Action Ispat and
Power Private Limited V/s. Shyam Metalics and Energy Limited
reported in (2021) 2 SCC 641 and more particularly, in view
of observation made in paragraph no. 25 of the aforesaid
judgment, the prayer made in the present petition is required to
be adjudicated by NCLT and therefore, the present
proceedings may be transferred to NCLT without opining
anything on merits of the matter.
3. Learned advocate Mr. Ravi Pahwa appearing for the
respondent could not point out anything contrary though he
opposed the petition.
4. It is pertaining to note that the Hon'ble Supreme Court in the
judgment relied upon by learned advocate Mr. Paneri in
paragraph no. 25 made following observations:-
"25. 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,
NEUTRAL CITATION
C/COMP/415/2016 ORDER DATED: 08/12/2023
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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
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 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.
5. In view of the aforesaid observations, which could not be
disputed by learned advocate Pahwa, now the proceedings of
this petition are required to be transferred to NCLT.
6. The Registry may act accordingly. This Company Petition is
disposed of before this Court.
(NIRZAR S. DESAI,J)
VARSHA DESAI
