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2022 (7) TMI 315 - CALCUTTA HIGH COURTSeeking to transfer of proceedings relating to winding-up of a company to the NCLT - seeking appropriate directions for the Official Liquidator to handover the possession of the mortgaged properties of the company (in liquidation) to the applicant - transfer of pending proceedings as well - 5th proviso of the newly amended Section 434 (1) (c) of the Companies Act, 2013 - HELD THAT:- In the newly introduced Insolvency regime and after the amendments to the Act, there is a radical change in the approach whilst dealing with companies in liquidation. It is true that there is no automatic transfer of all proceedings pending for winding-up of a company to the NCLT. In fact, there is an element of discretion which the Company Court retains in respect of pending winding-up proceedings even post amendment. However, such discretion has to be exercised in the facts and circumstances of each case. The sole test laid down in the decision of Action Ispat [2020 (12) TMI 535 - SUPREME COURT] as followed in A. Navinchandra Steels (P) Ltd. [2021 (3) TMI 38 - SUPREME COURT] is whether an irreversible situation has arisen warranting the Court to stay its hands and not transfer the proceeding to the NCLT. There are no facts whatsoever which justify the conclusion of an irreversible situation having arisen in the facts of the case. The company was directed to be wound-up on the 6th March, 2017. Thereafter, one of the contributories, namely Indo Wagon Engineering Ltd. had obtained diverse orders from Court whereby they continued to be in possession of the assets of the company (in liquidation). Admittedly, till date there is no scheme for repayment of the outstanding dues of the creditors which has been framed. There are no merit in the objection raised by the contributory that a petition under Section 7 and Section 9 of the Insolvency and Bankruptcy Code 2016 (the Code) should be pending before the NCLT, prior to directing transfer of the winding-up proceedings to the NCLT. Neither is this legislative intent nor is this pre-condition borne out from the language of the newly amended section. Accordingly, there are no merit in this submission and the same is rejected - also there are no merit in the submission that the fact that some moneys have been paid by the contributory would create an irreversible situation which justifies these proceedings being transferred to the NCLT. None of these grounds make it impossible to set the clock back compelling the Company Court to proceed which the winding-up of the company instead of transferring the proceeding to the NCLT. All such issues can always be decided by the NCLT during the course of winding-up. Hence, there is no impossible situation arisen which justifies this Court retaining this winding-up proceeding. It is to be remembered that, the jurisdictional change brought about in the amended Section 434 (1) (c) makes it clear that it is now obligatory for the Court (in the absence of any irreversible or exceptional circumstances) to transfer the proceedings to the NCLT. This is the clear legislative intent. In fact, to continue with the winding-up proceedings in the absence of an irreversible situation would tantamount to committing a jurisdictional error. The decision relied on by the contributory, UNION OF INDIA VERSUS AMRIT LAL MANCHANDA [2004 (2) TMI 361 - SUPREME COURT] is distinguishable and inapplicable to the facts of this case. It is directed that this Company Petition being CP No. 387 of 2014 and all applications filed therein stand transferred forthwith to the National Company Law Tribunal Kolkata - application allowed.
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