Winding up Proceeding Pending

After transfer of winding up petition to the NCLT, it is the responsibility of Creditors to file its claim with IRP irrespective of the fact that the Official Liquidator had admitted its claim or not during the winding up – Sylvan Commercial Pvt. Ltd. Vs. The Official Liquidator, High Court at Calcutta – NCLT Kolkata Bench

NCLT Kolkata Bench held that:
(i) After publication of notice in Form A by the Insolvency Resolution Professional, inviting claims from creditors, it was the responsibility of the Applicant to file its claim in the respective form with the Resolution Professional irrespective of the fact that the Official Liquidator had admitted its claim or not.
(ii) After transfer of winding up petitions to the NCLT, the same is treated under the IBC and hence, the process under the Code is to be followed, which has not been done in the present case.

After transfer of winding up petition to the NCLT, it is the responsibility of Creditors to file its claim with IRP irrespective of the fact that the Official Liquidator had admitted its claim or not during the winding up – Sylvan Commercial Pvt. Ltd. Vs. The Official Liquidator, High Court at Calcutta – NCLT Kolkata Bench Read Post »

If Liquidation Process under IBC is completed and the Company is taken over by the Successful Bidder, application u/s 272(1)(e)/271(c) of Companies Act, 2013 cannot be maintained – Union of India Vs. Metkore Alloys and Industries Ltd. – NCLT Hyderabad Bench

In this case, an application is filed u/s 272(1)(e) read with section 271(c) of Companies Act, 2013, read with section 243 of the Companies Act, 1956 read with rule 11 of the NCLT Rules, 2016 seeking winding up of the Metkore Alloys and Industries Ltd.
NCLT Hyderabad Bench held that the company already underwent the process of liquidation and Liquidator was appointed, who declared the successful bidder and had sought for closure of the liquidation process. In similar application, Hyderabad Bench-1 passed an order returning the application therein by observing that the continuation of proceedings against the respondent is impermissible under Law. The application was returned, giving liberty to the applicant after a decision is taken on approval/rejection of the resolution plan in the ongoing CIRP process. The said Bench relied on orders passed by the Hon’ble High Court of Calcutta in Avani Projects & Infrastructures Ltd Vs Ornate Tradcom Pvt.Ltd CA 92 of 2019.
Since in this case, the liquidation process is completed and the company is taken over by the successful bidder, this application cannot be maintained against the CD and is hence dismissed.

If Liquidation Process under IBC is completed and the Company is taken over by the Successful Bidder, application u/s 272(1)(e)/271(c) of Companies Act, 2013 cannot be maintained – Union of India Vs. Metkore Alloys and Industries Ltd. – NCLT Hyderabad Bench Read Post »

Whether Company Court can suo motu transfer a proceeding relating to winding up to NCLT or can such transfer only be made pursuant to an application by one of the parties? – Abhijeet Projects Ltd. – Calcutta High Court

Hon’ble Calcutta High Court held that:
(i) Unless the court is convinced that the company is to suffer an inevitable corporate death the first choice would to be to make an all out attempt to revive the company and this procedure has been elaborately laid down in IBC. The Companies Act, 2013 is not suited for such situation.
(ii) The Court has discretion to transfer the proceeding depending upon the stage of the proceeding. If it appears to the Company Court that the die is cast and the corporate death of the company is inevitable there is no requirement to transfer such proceeding.
(iii) The said discretion is not always dependent upon any formal application being made but it is always desirable that the views of the petitioning creditor, secured creditors and the official liquidator are ascertained.

Whether Company Court can suo motu transfer a proceeding relating to winding up to NCLT or can such transfer only be made pursuant to an application by one of the parties? – Abhijeet Projects Ltd. – Calcutta High Court Read Post »

An order of the Hon’ble High Court shall be binding on the Adjudicating Authority (Tribunal) established under Section 419(4) of the Companies Act, 2013 exercising Territorial Jurisdiction – M/s. Indra Marshal Power Pvt. Ltd. Vs. M/s. Akshaya Irrigation Products Pvt. Ltd. – NCLAT Chennai

NCLAT held that an Order of the Hon’ble High Court passed in a given case shall be binding on the Adjudicating Authority (Tribunal) established under Section 419(4) of the Companies Act, 2013 exercising Territorial Jurisdiction. To put it differently, the propriety, sobriety and the comity of judicial discipline require an Adjudicating Authority (Tribunal) is to follow the Order of the Hon’ble High Court in true letter and spirit and without any deviation, whatsoever. No wonder, an order / decision, is an Authority for what it actually decides. It is highly inappropriate and impermissible for an Adjudicating Authority (Tribunal) not to follow the Order, passed by the Hon’ble High Court.

An order of the Hon’ble High Court shall be binding on the Adjudicating Authority (Tribunal) established under Section 419(4) of the Companies Act, 2013 exercising Territorial Jurisdiction – M/s. Indra Marshal Power Pvt. Ltd. Vs. M/s. Akshaya Irrigation Products Pvt. Ltd. – NCLAT Chennai Read Post »

A CIRP application under Section 9 of IBC shall be maintainable without service of Demand Notice under Section 8 where winding up proceeding was transferred to NCLT u/s 434 of Companies Act, 2013 – Rajeev Srivastva Suspended Director of M/s Assotech Milan Resorts Pvt. Ltd. Vs. Ahluwalia Contracts (India) Ltd. – NCLAT New Delhi

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.

A CIRP application under Section 9 of IBC shall be maintainable without service of Demand Notice under Section 8 where winding up proceeding was transferred to NCLT u/s 434 of Companies Act, 2013 – Rajeev Srivastva Suspended Director of M/s Assotech Milan Resorts Pvt. Ltd. Vs. Ahluwalia Contracts (India) Ltd. – NCLAT New Delhi Read Post »

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