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2019 (12) TMI 625 - HC - Companies LawWinding up petition - section 433(e) of the Companies Act, 1956 - Does this Court retain jurisdiction to hear the winding up petition being CP 1 of 2016 and the connected applications thereto? If so, what are the provisions of law applicable to adjudicate the said petition? - HELD THAT:- The Company Judge of this Court retains the jurisdiction to try the aforesaid winding up petition falling in the category of saved petition, even if an insolvency proceeding is initiated against the same company before the NCLT under the provisions of IBC by another creditor, like Devi Trading. The applicable law for the said petition to try out by the Company Court will be the Act of 1956 and Rules of 1959. Should the Provisional Liquidator be released/discharged and directed to make over possession of the properties and assets, books of accounts of the said Company in his possession to the IRP appointed by NCLT? - Should further hearing of the winding up petition (C.P 1 of 2016) along with all connected applications be stayed? - Should the winding up petition along with all connected applications be transferred to NCLT to be further heard by it? Does NCLT have the jurisdiction to hear out the petitions filed by the intending purchasers? - HELD THAT:- The applications filed by the intending purchasers of the flats / units developed by the said company cannot be decided by the NCLT, it requires declaratory orders to be passed with regard to civil rights of the parties as also direction for execution of conveyance and making over possession. The NCLT does not possess the jurisdiction under IBC for passing of such orders. The IRP, however, will be free to approach the Provisional Liquidator and take inspection and obtain copies of the documents and information as required by it for preparing the resolution plan to be submitted before the NCLT. The Provisional Liquidator under no circumstances shall make over the originals of the book and the possession of the assets of the said Company to the IRP. If the IRP has to inspect any asset of the said Company for the preparation of the Resolution Plan he should approach the Provisional Liquidator who will render necessary assistance and cooperation. Are the provisions of IBC applicable to the instant winding up petition when the same has been filed on 4th January, 2016 i.e. much prior to IBC coming into operation? - HELD THAT:- In view of the provisions of a winding up petition which is a saved petition being transferred to NCLT for being heard before it like a petition under Section 9 of the IBC, it cannot be said that the provisions of IBC has not been made applicable to the saved petitions like the said petition, even if, the same has been filed prior to IBC coming into force. Whether the order dated 13th March, 2019 could have been obtained from NCLT without first obtaining leave of this Court under the provisions of section 446 of the Act of 1956? - Is the order of NCLT dated 13th March, 2019 in the absence of leave under section 446 of the Act, 1956 or is otherwise an order without jurisdiction and a nullity? - HELD THAT:- The NCLT was well within its competence to entertain such application despite prior leave under the provisions of Section 446 of the Act of 1956 having not been obtained. The NCLT, however, should have been cautious before passing the order dated 13th March, 2019 at the instance of a creditor (Devi Trading) when the fact that the Provisional Liquidator had been appointed in a saved petition by the Company Judge was brought to its notice particularly when the application appears to have been moved about an year after filing. The NCLT should have also considered the effect of a winding up petition being advertised after having been admitted which assumes a representative character when all creditor like Devi Trading become obliged to join in the winding up proceedings pending before this Court to either support or oppose the winding up order. NCLT while exercising its jurisdiction under IBC ought to have been more cautious while passing orders directing the Provisional Liquidator to hand over the books, documents and assets of the company knowing that the Provisional Liquidator was appointed by the Company Judge of this Court in a saved petition and further on being informed that the Company Judge is considering an application of the IRP for discharge of the Provisional Liquidator. Propriety also demanded that NCLT should not have passed mandatory directions on the Provisional Liquidator to hand over the books, documents and assets to the IRP or directed personal presence of the Provisional Liquidator while hearing an application under Section 7 of the IBC when it knew that the Provisional Liquidator has been appointed by the Company Judge of this Court in a saved petition. This Court possesses the jurisdiction to hear out the winding up petition being CP 1 of 2016 along with all connected applications. However, the winding up petition and the connected applications thereto should not be proceeded with till NCLT comes to the conclusion as to whether the resolution plan in respect of the said company is either approved or rejected - Application disposed off.
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