CA(AT)(I)-976/2022-NCLAT

In Sabari Inn Pvt. Ltd. Vs. Rameesh Associates Pvt. Ltd., Mosmetro Story (FZE) Vs. BASF India Ltd. & Anr. and Mr. Shailendra Sharma Vs. Ercon Composites, it has been held by this Tribunal that even if a winding up petition is transferred to the Adjudicating Authority for treating it as an application filed under Section 9, it has to be preceded by a notice under Section 8 of the Code. The decisions rendered in the aforesaid three cases have been doubted by a bench of the same strength by recording reasons in its order dated 25.11.2022, therefore, it referred this matter to the larger bench for considering again.
NCLAT held that after the transfer of winding up proceedings as per Rules 2016 read with amendments made in Section 434 of the Act, 2013 as applicable to the Code by Act 26 of 2018, if the winding up petition has been filed on the ground that the Company is unable to pay its debt, for treating the application under Section 9 of the Code, notice under Section 8 of the Code is not necessary or mandatory and a petition under Section 9 shall be maintainable without service of notice under Section 8 of the Code.