TMI Blog2017 (9) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... ned High Court which is having seisin over the winding up proceedings or await the outcome of the winding up proceedings by adjourning it sine die? 3. Whether the Code gives any room for discretion to be exercised for adjourning it sine die in view of the statutory mandate given under Sections 7, 9 and 10 of the Code for expeditious disposal of cases by either admitting or rejecting it within the fixed time frame? 4. In case if the petition is adjourned sine die and if the winding up petition is dismissed or set aside in appeal subsequently, whether there is scope in such an eventuality for power of revival within the frame work of the Code conferred on this Tribunal?” The Registrar, NCLT, New Delhi is directed to place the above reference made by this Special Bench, NCLT, New Delhi by virtue of second proviso to sub-section (2) of Section 419 of the Companies Act, 2013 as expeditiously as possible before the Hon'ble President - No. IB-190(PB)/2017 And No. IB-110(PB)/2007 - - - Dated:- 21-8-2017 - MR. R. VARADHARAJAN AND MR. MS. DEEPA KRISHAN, JJ. For The Petitioner : Nesar Ahmad, Practicing Company Secretary and Ahsan Ahmad Adv. For The Respondent : Manoj K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Counsel for the respondent before the Hon'ble Principal Bench, NCLT which is evident vide order dated 11.07.2017 that several company petitions seeking for winding up of the Corporate Debtor is pending before the Hon'ble High Court of Delhi and in the circumstances vide the said order of the Hon'ble Principal Bench the following question has been framed, namely: Whether the process under the Insolvency and Bankruptcy Code, 2016 can be triggered in the face of the pendency of the winding up petitions or it is to be considered as an independent process? (c) For arguments of the aforesaid issue the Company Petition was listed on 25.07.2017. Since the Hon'ble Principal Bench did not sit on the said date and as a Special Bench was constituted to hear the matters listed before the Hon'ble Principal Bench in lieu of it, this Special Bench taking into consideration the exigencies of the situation chose to hear the submissions of the respective parties in this as well as in C.P. No. 110 (PB) of 2017 in the matter of Alchemist Asset Reconstruction Co. Ltd. v. Tirupati Buildings Offices (P.) Ltd. in which petition also a similar issue has arisen due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. (IB)-217(PB)/2017 on 19.07.2017 has held as follows:- Learned Counsel for the respondent has brought to the notice of the Bench that winding up petition against the respondent company namely Punj Lloyds Ltd. is already pending before the Hon'ble Delhi High Court and taking notice of the aforesaid fact C.P. No. 1156 of 2016 was transferred back to the Hon'ble Delhi High Court. In various orders passed by this Tribunal, we have expressed the opinion that in cases where winding up proceedings are pending against a Company, then it would not be conducive for the Tribunal to trigger insolvency process against that very company as there is likelihood of conflict between the two statutory entities, namely Official Liquidator and the Insolvency Resolution Professional. Therefore, the proceedings which are continuing in the Hon'ble Delhi High Court may constitute a better basis for adjudication being earlier in point of time and the claim having been made by other Operational Creditors in the proceedings for winding up. The Ministry of Corporate Affairs has also issued notification on 29.06.2017 to that effect. Accordingly, we refer this matter for consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had thus remitted back the matter to NCLT, New Delhi for admission, if the papers are otherwise in order. (l) In addition, this Special Bench of NCLT in the case of M/s. Nowfloats Technologies Pvt. Ltd Vs M/s Getit Infoservices Pvt. Ltd. in C.A. No. (IB) 45 (PB)/2017 had specifically held, where the Official Liquidator has been appointed as the Provisional Liquidator, then the recourse of the parties is to approach the Court which has thought it fit to appoint the Liquidator and not this Tribunal and that the proceedings cannot be sustained before this Tribunal without obtaining the leave of the Hon'ble High Court under Section 450 of the Companies Act, 1956 for continuation of the proceedings under the Code. (m) Strictly speaking the above cases referred to are not transferred cases as contemplated under Section 434 of the Companies Act, 2013 and the notifications issued thereunder from time to time to facilitate and to remove difficulties in relation to matters which are required to be transferred and for bringing in clarity as to jurisdiction of the respective judicial forums. A combined reading of Section 434 of the Companies Act, 2013 and the notifications i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o embargo on this Court to hear this Petition along with other companion Petitions, in view of the admitted position that the notice under Rule 26 of the Companies (Court) Rules, 1959 has been served on the respondent prior to 15th December 2016. In my view, since there is no inconsistency in the provisions of the Insolvency and Bankruptcy Code, 2016 and the Companies Act, 2013 or Companies Act, 1956 in respect of the jurisdiction of the Company Court or of the NCLT in so far as winding up proceedings are concerned, reliance placed by Mr. Andhyarujina, the learned Counsel appearing for the respondent on Section 238 of the Insolvency and Bankruptcy Code, 2016 is totally misplaced. The effect of non obstante provisions if any in Section 238 of the Insolvency and Bankruptcy Code, 2016 would have been significant only if there would have been conflict in aforesaid provisions and not otherwise. In my view, Mr. Sen, the learned Counsel appearing for the petitioner is right in his submission that Section 238 of the Code has no application in this situation on the ground that there is no conflict between the provisions of the Code and the provisions of the Companies Act, 1956 or the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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