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2019 (1) TMI 1702 - HC - Companies LawTransfer of Company petition to NCLT - service of Form No. 6 - HELD THAT - It was held in the case of FORECH INDIA LTD. VERSUS EDELWEISS ASSETS RECONSTRUCTION CO. LTD. 2019 (1) TMI 1442 - SUPREME COURT that the mere fact that post notice winding up proceedings are to be dealt with in accordance with the provisions of the Companies Act 1956 does not bar the applicability of the provisions of IBC in general to proceedings validly instituted under IBC nor does it mean that such proceeding can be suspended. Since the insolvency petition is already pending before the NCLT and this petition has not been admitted and a prayer has been made for transferring this Company petition to the NCLT by learned counsel for respondent therefore in terms of the aforesaid judgment in the case of Forech India Ltd the prayer is allowed and the company petition is transferred to the NCLT.
Issues:
Transfer of insolvency petition to NCLT based on Supreme Court judgment. Detailed Analysis: 1. Transfer of Insolvency Petition to NCLT: - The respondent's counsel requested the transfer of the insolvency petition to the NCLT due to a judgment of the Supreme Court in the case of Forech India Ltd. vs. Edelweiss Assets Reconstruction Co. Ltd. The Supreme Court clarified that only winding up petitions where no notice under Rule 26 of the Companies (Court) Rules was served were to be transferred to the NCLT initially. However, with subsequent amendments, any person could apply for the transfer of such petitions to the NCLT, even if notice had been served. This statutory scheme aimed to avoid parallel proceedings in High Courts and the NCLT to achieve the objective of reviving corporate debtors in financial distress. 2. Interpretation of Statutory Provisions: - The judgment emphasized the importance of Section 238 of the Insolvency and Bankruptcy Code (IBC), which states that the provisions of the Code shall prevail over any inconsistency with other laws. It rejected the argument that the amended Section 434 of the Companies Act, 2013, should be considered part of the IBC, clarifying that any inconsistency would be resolved in favor of the Code. This interpretation ensured that proceedings before the NCLT, initiated by a secured financial creditor, were valid and within the jurisdiction of the NCLT. 3. Applicability of IBC to Post-Notice Winding Up Proceedings: - Referring to a judgment of the Bombay High Court, the Supreme Court highlighted that the IBC's provisions could apply to post-notice winding up proceedings, even if the Companies Act, 1956, governed such petitions. The judgment emphasized that the IBC's remedies should not be deprived to parties involved in winding up proceedings, and the IBC's provisions could not be suspended based on transitional provisions. This clarification ensured that the benefits of the new legislation were not negated by existing winding up proceedings. 4. Decision and Implementation: - In light of the pending insolvency petition before the NCLT and the request for transfer, the Court allowed the transfer of the company petition to the NCLT based on the Forech India Ltd. judgment. The directive was issued for the expeditious processing of this transfer to ensure the continuation of proceedings before the appropriate adjudicating authority. Overall, the judgment provided clarity on the transfer of winding up petitions to the NCLT under the IBC, the primacy of the IBC's provisions over conflicting laws, and the applicability of the IBC to ongoing winding up proceedings. The decision to transfer the company petition to the NCLT aligned with the statutory framework and the objective of streamlining insolvency proceedings for corporate debtors.
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