Rajasthan High Court - Jodhpur
Rajasthan Glyoxal Ltd.Udaipur vs None (2024:Rj-Jd:8932) on 21 February, 2024
[2024:RJ-JD:8932]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Company Petition No. 9/2012
Rajasthan Glyoxal Ltd.udaipur
----Petitioner
Versus
None
----Respondent
For Petitioner(s) : None.
For Respondent(s) : Dr. RDSS Kharlia with Ms. Kinjal Purohit.
Mr. M.R. Pareek.
HON'BLE MR. JUSTICE ARUN MONGA
Order
21/02/2024
1. Instant company petition herein is for registration of the case
for passing appropriate orders including order for winding up of
the company viz. Rajasthan Glyoxal Private Limited and file may
be directed to be reconstituted, if the case has been registered in
Registry of this Court.
2. When called out for hearing, none appears for the petitioner.
While on the other hand, learned counsel for the respondent has
drawn my attention to the Apex Court judgment rendered in
Action ISPAT and Power Pvt. Ltd. Vs. Shyam Metalics and
Energy Ltd.: Civil Appeal No.4041/2020, decided on
15.12.2020.
3. Guided by the aforesaid judgment, learned counsel contends
that the proceedings before this Court are since at a very initial
stage as only notice of winding up has been issued so far and
nothing further has happened. He submits that the instant petition
ought to be transferred to National Company Law Tribunal ('NCLT')
Jaipur Bench.
[2024:RJ-JD:8932] (2 of 3) [COP-9/2012]
4. The genesis of his arguments is the principle enunciated by
Supreme Court in the judgment ibid. The relevant extract whereof,
is as below:-
"11. What becomes clear upon a reading of the three
judgments of this Court is the following:
(i) So far as transfer of winding up proceedings is
concerned, the Code began tentatively by leaving
proceedings relating to winding up of companies to be
transferred to NCLT at a stage as may be prescribed by
the Central Government.
(ii) This was done by the Transfer Rules, 2016 (supra)
which came into force with effect from 15.12.2016. Rules
5 and 6 referred to three types of proceedings. Only
those proceedings which are at the stage of pre-service
of notice of the winding up petition stand compulsorily
transferred to the NCLT.
(ⅲ) The result therefore was that post notice and pre
admission of winding up petitions, parallel proceedings
would continue under both statutes, leading to a most
unsatisfactory state of affairs. This led to the introduction
of the 5th proviso to section 434(1)(c) which, as has
been correctly pointed out in Kaledonia (supra), is not
restricted to any particular stage of a winding up
proceeding.
(iv) Therefore, what follows as a matter of law is that
even post admission of a winding up petition, and after
the appointment of a Company Liquidator to take over
the assets of a company sought to be wound up,
discretion is vested in the Company Court to transfer
such petition to the NCLT. The question that arises before
us in this case is how is such discretion to be exercised?
xxxxxx
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 pre- admission 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
[2024:RJ-JD:8932] (3 of 3) [COP-9/2012]
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 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."
5. In view of the aforesaid settled position of law, the instant
petition is transferred to NCLT and further proceedings shall
commence from the stage, they were pending before this Court.
6. Registry to take appropriate steps to send the file to the
Tribunal as above.
7. Disposed of as above.
(ARUN MONGA),J
67-Sumit/-
Powered by TCPDF (www.tcpdf.org)
