Nitya Kukreja vs Abw Infrastructure Limited

JAYANT NATH, J

CA No.726/2018

This application is filed by the applicant Sh.Brij Mohan Kapur under section 434(1)(c) of the Companies Act, 2013

(hereinafter referred to as ‘the Act, 2013’) seeking to transfer the present proceedings to the Principal Bench,

NCLT, New Delhi. It may be noted that Mr.Brij Mohan Kapur, the applicant is not a party to the present petition.

It has been pleaded that under the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 No.6 of 2018

which was promulgated on 06.06.2018, an amendment has been inserted in the Companies Act which permits the

transfer of the proceedings pending before this court to the NCLT. Reliance is placed on the said amendment, which

reads as follows: “39. In section 434 of the Companies Act, 2013, [as substituted by paragraph 34 of the Eleventh

Schedule to the Insolvency and Bankruptcy Code, 2016], in sub-section (1), in clause (c), after the proviso, the

following proviso shall be inserted, namely:-

Provided further that any party or parties to any proceedings relating to the winding up of companies pending before

any Court immediately before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance,

2018, may file an application for transfer of such proceedings and the Court may by order transfer such proceedings

to the Tribunal and the proceedings so transferred shall be dealt with by the Tribunal as an application for initiation of

corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016.â€​

A perusal of the above provision would show that it provides that proceedings relating to the winding up of

companies pending before any court immediately before commencement of Insolvency and Bankruptcy Code

(Amendment) Ordinance, 2018, the applicant may file an application for transfer of such proceedings to the Tribunal.

In this case, the court had on 29.05.2018 passed the following order:

“12. Keeping in view the above, the petition is admitted and the Official Liquidator attached to this Court is

appointed as the Liquidator. He is directed to take over all the assets, books of accounts and records of the

respondent-company forthwith. The citations be published in the Delhi editions of the newspapers „Statesman‟

(English) and „Veer Arjun‟ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing.

Publication will be carried out by the petitioner. The Official Liquidator shall also endeavour to prepare a complete

inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they

are kept shall be sealed by him. OL is also authorised to break open the locks of the office of the respondent

company in case the need arises. At the same time, he may also seek the assistance of a valuer to value all assets to

facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge

of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be

necessary in this regard to protect the premises and assets of the respondent-company.

However, keeping in view the averments of the learned counsel for the respondent in the interest of justice, I

suspend the aforesaid order appointing the Provisional Liquidator for a period of four weeks. In case necessary

payments are not made to the petitioner within the said period of four weeks, the aforesaid order shall become

operational. It is also made clear that the respondent shall not operate their bank accounts or deal with their movable

and immovable assets in any manner whatsoever in this period of four weeks.â€​

Admittedly, the respondent has not taken any steps for payment of the dues of the various petitioners. Hence, the

order appointing the OL as the liquidator came into operation on expiry of four weeks from 29.05.2018. The present

application has now been filed on 02.07.2018. As the OL has already been appointed as the Liquidator and the assets

are custodia legis, it is not possible to transfer the case to NCLT.Â

I may also note that the applicant is not a party to the present proceedings. This is a bunch of proceedings which

are being heard together against the respondent Company. They are in all 18 such petitions which are listed today.

Learned counsel appearing for petitioners have vehemently opposed the present application pointing out that they

would prefer that this court may continue the liquidation proceedings which have already been commenced.

In my opinion, the court has already ordered for winding up of the respondent Company and hence, the application

cannot be considered. Even otherwise, keeping in view the objections of the petitioners, I do not deem it appropriate

to transfer this petition to NCLT. The application is accordingly dismissed.Â

The OL will ensure appropriate steps are taken to take over the assets, books of accounts and the records of the

respondent Company and will ensure compliance of order dated 29.05.2018

CO.PET. 449/2016

9. List on 26.07.2018 for direction. Â