Karnataka High Court
M/S Consolidated Construction vs M/S Associate Decor Limited on 1 December, 2023
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NC: 2023:KHC:43737
COP No. 208 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
COMPANY PETITION NO. 208 OF 2013
BETWEEN:
M/S CONSOLIDATED CONSTRUCTION
CONSORTIUM LIMITED,
HAVING ITS OFFICE AT
NO.173, 3RD MAIN ROAD,
4TH PHASE, DOLLARS LAYOUT,
J.P NAGAR, BANGALORE - 560 078,
REPRESENTED BY ITS
MANAGING DIRECTOR.
...PETITIONER
(BY SRI. MUJTABA H., ADVOCATE)
AND:
M/S ASSOCIATE DECOR LIMITED
FORMERLY KNOWN AS
"STAR PANEL BOARDS LIMITED"
A COMPANY INCORPORATED UNDER THE
Digitally signed PROVISIONS OF COMPANIES ACT 1956,
by BHARATHI
S HAVING ITS REGISTERED OFFICE AT
Location: HIGH NO.400, 1ST FLOOR,
COURT OF
KARNATAKA 1ST BLOCK, 2ND MAIN ROAD,
R.T. NAGAR,
BANGALORE - 560 032,
REPRESENTED BY ITS MANAGING DIRECTOR.
...RESPONDENT
(BY SRI. VIVEK HOLLA, ADVOCATE FOR
M/S. HOLLA AND HOLLA, ADVOCATES)
THIS COMPANY PETITION IS FILED U/S 433[E] AND [F]
R/W SECTION 434[1][A] AND 439[1][B] OF THE COMPANIES
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NC: 2023:KHC:43737
COP No. 208 of 2013
ACT, 1956, R/W RULE 9 OF THE COMPANY [COURT] RULES,
1959, PRAYING TO ORDER THAT THE RESPONDENT COMPANY
NAMELY 'ASSOCIATE DECOR LIMITED', BE WOUND UP BY THIS
HON'BLE COURT UNDER THE PROVISIONS OF THE COMPANIES
ACT, 1956; AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Learned counsel for the Petitioner submits that another
creditor has filed proceedings before the National Company Law
Tribunal, Bengaluru Bench which is pending consideration.
2. The Hon'ble Supreme Court in the case of Action
Ispat Pvt. Ltd., v. Shyam Metalics and Energy Ltd.,1 has
held as under:
"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, 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,
2021(2) SCC 641
NC: 2023:KHC:43737
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."
(emphasis supplied)
3. A Co-ordinate Bench of this Court in the case of
Nitesh Residency Hotels Pvt. Ltd., rep., by its Managing
Director v. Archdiocese of Bangalore2 has, noticing the
judgment of Honble Supreme Court in the case of Action Ispat
and Power (P) Ltd., v. Shyam Metalics and Energy Ltd.,3
has held that while ordering transfer of petition, discretion is
required to be exercised and also keeping in mind as to
whether there are proceedings pending before the National
Company Law Tribunal.
2021 SCC OnLine KAR 14704
(2021) 2 SCC 641
NC: 2023:KHC:43737
4. In view of the admitted position that proceedings are
pending before the National Company Law Tribunal pertaining
to the Respondent Company it is expedient that the present
proceedings also be transferred to the National Company Law
Tribunal.
5. In view of the aforementioned, the proceedings are
transferred to the National Company Law Tribunal, Bengaluru
Bench to be considered in accordance with the provisions of the
Insolvency and Bankruptcy Code.
Sd/-
JUDGE
MH/-
List No.: 2 Sl No.: 16 CT:SNN
