TMI Blog2018 (8) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... C.P. 822 of 2014 - - - Dated:- 21-6-2018 - Mr. Ashis Kumar Chakraborty, J. For The Applicant : Mr. Tilak Kumar Bose, Sr. Advocate, Mr. Soumik Kanti Chakraborti, Advocate, Mr. Indradeep Basu, Advocate And Mr. R. Roychowdhury, Advocate For The Creditor/Respondent : Mr. Ratnanko Banerji, Sr. Advocate, respondent Mr. Amitava Ghosh, Advocate, Mr. Sakya Sen, Advocate, Mr. Reetobroto Mitra, Advocate, Mr. Priyankar Saha, Advocate, Mr. Rudrajit Sarkar, Mr. C.K. Saha, Advocates For The liquidation : Mr. Bimal Kumar Chatterjee, Sr. Advocate Mr. S.N. Mitra, Sr. Advocate Mr. Shyamal Sarkar, Sr. Advocate Mr. D.N. Sharma, Advocate Ms. Manju Bhuteria, Advocate Mr. Ramesh Dhara, Advocate Mr. Ranjan Kr. Gupta, Advocate Mr. A.G. Mukherjee, Advocate And Ms. Nibedita Pal, Advocate JUDGMENT Ashis Kumar Chakraborty, J. In this application the applicant, State Bank of India (hereinafter referred to as the applicant bank ) has prayed for, recalling of the order dated June 07, 2018 passed by this Court in C.A. No. 51 of 2018 with C.P. No. 822 of 2014. By the said order, this Court directed winding up of the company, Jai Balaji Industries Ltd., [hereinafter referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R ), under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (in short SICA, 1985 ). Thus, by an order dated March 22, 2016 a learned Single Judge of this Court adjourned the hearing of the said winding up application sine die, with liberty to the parties to mention upon notice. On May 28, 2016 the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC ) was notified and the said Code came into force on that date. With the Sick Industrial Companies (Special Provisions) Repealing Act, 2003 coming into force with effect from December 01, 2016, any reference pending before BIFR stood abated. Thereafter, the company (presently in liquidation) had an option to make reference to the National Company Law Tribunal (in short NCLT ), under the IBC within 180 days from December 01, 2016. Nevertheles, the company (presently in liquidation) was not referred to NCLT. On March 16, 2017 the company (presently in liquidation) filed an application, C.A. No. 133 of 2017 praying for, stay of all further proceedings in the winding up application, C.P. No. 822 of 2014. During the pendency of the said application the petitioning creditor and the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d application for hearing and it was submitted on behalf of the petitioning creditor that in terms of the consent order dated April 17, 2017 the company made payment of the monthly instalments up to the month of November and thereafter, it failed to pay all the monthly instalments amounting to ₹ 2,86,00,000/-. The petitioning creditor contended that in view of the said defaults committed by the company (presently in liquidation) to make payment in terms of the said order dated April 17, 2017 it is entitled not only to proceed with the winding up application C.P. 822 of 2014 but also to obtain the final order of winding up of the company. After the hearing the submissions made on behalf of the petitioning creditor which remained uncontroverted, this Court passed the said order dated June 07, 2018 allowing the winding up application. As mentioned earlier, it is the said order dated June 07, 2017 which is sought to be recalled by the applicant bank. In the application it is the case of the applicant bank that from 2004 onwards, it had granted financial assistance to the company (presently in liquidation). Thereafter, State Bank of Indore, State Bank of Mysore, State Bank of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt the applicant bank claimed that on June 11, 2018 when its application under IBC was taken up for hearing before the NCLT, relying on the said order dated June 07, 2018 the learned counsel appearing for the company (presently in liquidation), its workers union pressed for dismissal of the proceeding under IBC. According to the applicant bank, the company (presently in liquidation) was well aware of the date of hearing of the application, C.A.51 of 2018 before this Court on June 06, 2017 and June 07, 2018 but they intentionally avoided the said hearing and allowed the said order dated June 07,2018 being passed for stalling the proceeding before the NCLT. By referring to the Companies (Court) Rules, 1959 (hereinafter referred to as the 1959 Rules ), particularly Rule 99 thereof, it was submitted by the applicant bank that in the present case, no doubt after the admission of the winding up application on September 14, 2015 the petitioning creditor caused advertisement of the winding up application being published in the newspapers stating that the application will be taken up for hearing on October 14, 2015 but subsequently, when the company (presently in liquidation) was regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the NCLT. On these grounds, the applicant bank strenuously pressed for recalling of the said order dated June 07, 2018 passed by this Court. The present application has been strongly contested mainly by the petitioning creditor. It was argued by the petitioning creditor that in terms of the said order dated April 17, 2017 when the company (presently in liquidation) defaulted to pay the entire amount of ₹ 3,77,88,569/- it was entitled to proceed with the said winding up application, C.P. No. 822 of 2014 and when the applicant bank chose not to appear before this Court on June 07, 2018 to oppose the winding up of the company (presently in liquidation) the latter. It was submitted by the petitioning creditor that as per the provisions contained in the IBC and the Eleventh Schedule thereunder, only an winding up application filed under the Companies Act, 1956 notice of which has not been served upon the company shall stand transferred to the NCLT. Therefore, in the present case, when the winding up application had already been admitted by the said order dated August 17, 2015 passed by the learned Single Judge of this Court the petitioning creditor was entitled to proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 50,00,000/- as directed by the Division Bench on September 04, 2015 the petitioning creditor caused the advertisement of the winding up application being published in newspapers stating that application would be heard by the Court on October 14, 2015. However, when the company (presently in liquidation) was registered with the BIFR, by the order dated March 22, 2016 a learned Single Judge of this Court adjourned the hearing of the winding up application, C.P. No. 822 of 2014 sine die. Until the company (presently in liquidation) filed the said application, C.A. No. 133 of 2017 the winding up application did not appear before this Court. Even in the said application, C.A. No. 133 of 2017 the company (present in liquidation) claimed the advertisement of the winding up application published in the newspapers on September 14, 2015 to be invalid advertisement. In the facts of the present case as discussed above, I find that in the instant case before allowing the application C.A.51 of 2018 and passing the order dated June 07, 2018, this Court ought to have directed publication of fresh advertisement of the winding up application in the newspapers and enable the secured creditors an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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