Uttarakhand High Court
COMP/4/2011 on 10 April, 2023
Office Notes,
reports, orders or
proceedings or
SL. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
COMP No. 4 of 2011
Hon'ble Manoj Kumar Tiwari, J.
Mr. Kisitij Sah, Advocate, holding
brief of Mr. Siddhartha Singh, Advocate
for the petitioner.
Mr. Sahil Mullick, Advocate, holding
brief of Mr. Pulak Raj Mullick, Advocate
for respondent no. 1.
Mr. Anil Kumar Joshi, Advocate for
Official Liquidator.
Heard learned counsel for the
parties.
This Company Petition under
Sections 433, 434 & 439 of Companies
Act, 1956 is filed for winding up of
Texplas (India) Pvt. Ltd., B.H.E.L.
Industrial Area, Ranipur, District
Haridwar.
The Company Petition has not been
admitted as yet, and advertisement in
terms of Rule 24(1) of Companies
(Court) Rules, 1959 has also not been
issued so far.
Mr. Anil Kumar Joshi, learned
counsel for Official Liquidator points out
that vide order dated 13.03.2013,
provisional Liquidator was directed to be
appointed, however, on an application
filed by respondent, said order was
recalled on 22.08.2013, with the
condition that respondent shall deposit a
sum of Rs. 1,66,329/- before the
Registrar General of this Court, within
two weeks.
Learned counsel appearing for M/s
Texplas (India) Pvt. Ltd. submits that
entire amount was deposited on
05.09.2013 in terms of order of this
Court dated 22.08.2013.
Learned counsel for respondent
raised a preliminary objection that in
view of provision contained in Section
434 of the Companies Act, 2013, this
Company Petition is liable to be
transferred to National company Law
Tribunal (NCLT). In support of this
contention, he has relied upon a
judgment rendered by Hon'ble Supreme
Court in the case of Action Ispat & Power
(P.) Ltd. v. Shyam Metalics & Energy
Ltd., reported in (2020) 122
taxmann.com 147 (SC). Para 22 of the
said judgment is extracted below:
"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 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."
Mr. Kshitij Sah, learned Counsel for
petitioner, however, objected to the
submission made on behalf of
respondent and submitted that the
Company Petition can be heard and
decided by this Court. He, however,
could not dispute the submission that
the irreversible stage, as contemplated
in the case of Action Ispat & Power (P.)
Ltd. v. Shyam Metalics & Energy Ltd.
(supra), has not arrived as yet.
In such view of the matter, this
Court has no other option but to transfer
this Company Petition to NCLT,
Allahabad.
Ordered accordingly.
Registry is directed to send the
entire record to NCLT, Allahabad within a
week.
Parties shall appear before the
concerned NCLT on 18.5.2023 without
any further notice.
In view of long pendency of this
company petition, learned Tribunal is
requested to dispose it of as
expeditiously as possible.
This company petition stands
disposed of for statistical purposes.
(Manoj Kumar Tiwari, J.)
10.04.2023
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