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2019 (6) TMI 77 - AT - Companies LawApproval of the scheme of compromise/arrangement - Sections 391/394 read with Sections 80, 81, 100 and 103 of The Companies Act, 1956 - whether or not the promoter directors or some of the shareholders of a company in liquidation can file an application under Section 391(1) of the Companies Act, 1956/Section 230(1) of the Companies Act, 2013 seeking arrangement as sought in this application? HELD THAT:- Liquidator is only an additional person and not exclusive person who can move application under Section 391 of the old Act when the company is in liquidation. Looking to these Judgements, we are unable to support the view taken by NCLT that the Appellant could not have filed the Petition under Section 391 of the old Act. In the present matter, the Appellant had filed the proceedings before Hon’ble Company Court but it appears to have got transferred to NCLT by an Office letter dated 7th January, 2017 (Page – 77). It does not appear that there was any Judicial Order to transfer. The Appellant cannot be held responsible for the transfer. However, now when the issue appears to be going to the root of jurisdiction, although we propose to remand back the matter to the NCLT, it appears to us that the present proceedings in NCLT should remain stayed giving opportunity to the Appellant to move the Hon’ble High Court to ensure that Scheme filed in Liquidation/winding up proceeding and Liquidation/winding up proceeding should be before same forum. A scheme of compromise and arrangement can be filed even when liquidation proceeding is pending but if such application/petition is filed, it would be a proceeding relating to the winding up going on and the same has to be in the same forum. The Impugned Order of NCLT is set aside and TCSP 1 of 2017 restored on the file of the National Company Law Tribunal, Mumbai Bench with a further direction that the NCLT will give one opportunity to the Appellant to move the Hon’ble High Court of Bombay – Company Court to ensure that the Scheme and Liquidation/winding up proceedings are before one and same forum. Interim Order dated 01.10.2018 passed in this appeal at the stage of admission shall stand lapsed.
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