TMI Blog2018 (9) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... re the NCLT and, as such, the question of admission of the said application under Section 7(5) of IBC, 2016 has not arisen. In any event, there is no certainty that the said application by the bank shall be admitted by the NCLT. For all the foregoing reasons, thus find merit in the contentions made by the petitioning creditor not to entertain the prayer made by the company in this application. Accordingly, the application stands rejected. - C.A. No. 220 of 2018 with C.P. No. 613 of 2016 - - - Dated:- 9-8-2018 - MR. ASHIS KUMAR CHAKRABORTY, J. For The Petitioning Creditor : Mr. Surajit Nath Mitra, Sr. Advocate, Mrs. Manju Bhuteria, Advocate And Mr. Nirmalya Dasgupta, Advocate For The Company : Mr. Ratnanko Banerjee, Sr. Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up application it was contended that before conclusion of the hearing of the winding up application, the application filed by the company for transfer of the winding up application to NCLT should be decided first. Accordingly, the said application of the company, C.A. No. 220 of 2018 along with the winding up application were fixed for hearing on August 02, 2018. On August 02, 2018 the said application, C.A. No. 220 of 2018 filed by the company (hereinafter referred to as the said application ) was first taken up for hearing. While placing the said application, learned Senior Counsel for the company referred to a communication dated July 25, 2018 issued by an advocate to the company enclosing therewith, a copy of an application filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the NCLT, this Court should allow the present application and transfer the winding up application filed by the petitioning creditor against it to NCLT. It was argued for the company that considering the object of the enactment of the IBC, 2016 for adjudication of the dues of both, a financial creditor as well as the operational creditor of the company, this Court should exercise its wide discretion conferred by the said second Proviso to clause (c) of sub-section (1) of Section 434 of the Act of 2013 and transfer the winding up application filed by the petitioning creditor to NCLT. On the other hand, the learned Senior Counsel appearing for the petitioning creditor of the winding up application vehemently opposed the prayer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the petitioning creditor can be either admitted or rejected by the NCLT with the passing of an order under Section 9(5) of the Code of 2016. Urging all these grounds, it was strongly contended by the learned Senior Counsel for the petitioning creditor that when the winding up application is fixed for hearing and the application of the said bank has not yet been any admitted by the NCLT, this Court should exercise the discretion conferred under the second Proviso to clause (c) of sub-section (1) of Section 434 of the Act of 2013 to reject the prayer of the company in this application. In his reply, learned counsel appearing for the company submitted that from a bare reading of the second Proviso incorporated to clause (c) of subsecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner to submit all information, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition, under Sections 7, 8 and 9 of the IBC,2016, as the case may be, including details of the proposed insolvency professional to the NCLT, within 60 days from the date of the said notification, failing which the said publication shall abate. Therefore, even the winding up applications which stood transferred as per Rule 5 of the said Companies (Transfer of Pending Proceedings) Rules, 2016 would not stand admitted before NCLT, without the petitioning creditor furnishing all information under Sections 7, 8 or 9 of the Code of 2016 which, inter alia, includes a certificate from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016. A bare reading of the above provision goes to show that it is the choice of either the petitioning creditor or the respondent company in an winding up application, pending before the High Court after service of the required notice under Rule 26 of the Companies (Code) Rules, 1959 to pray for transfer of the winding up application to the NCLT. The above quoted provision further confers discretion on the High Court to allow the prayer made by a party to transfer the winding up application to the NCLT or to reject such prayer. It is well settled that when a discretion is conferred on the Court to allow any relief claimed by a party to a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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