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TMI Blog2020 (10) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... orated under the provisions of the Companies Act, 1956 and having its registered office at No. 318, Sri Soudha, Indiranagar, I Stage, Bengaluru - 560038 and CIN No. U45203KA1990PTC011018. Its Authorized Capital is Rs. 1,00,00,000.00 divided into 10,000 shares of Rs. 100/-each. (2) It is stated that the Petitioner is one of the leading manufacturers of various grades of cement. The Respondent approached the Petitioner and placed orders from time to time for supply of Portland cement which was to be delivered by the Petitioner at project site of the Respondent at Mulbagal. The Petitioner has delivered cement form August 2014 onwards and has been regularly raising invoices for delivery of the cement that has been regularly raising invoices for delivery of the cement that has been ordered by the Respondent. Unfortunately, the Respondent has been highly irregular and has failed and neglected to pay the value of the cement that has been delivered for the Respondent's project location at Mulbagal. The amounts outstanding and the particulars of the invoice are as follows: Inv. No. Type Inv. Date Inv. Amt 8994319511 RV 16/08/2014 1,15,800.00 8994319688 RV 16/08/2014 1,58,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for encashment. All the above cheques have returned dishonoured by the Respondent banker with the reasons for dishonouring the instruments as being "FUNDS INSUFFICIENT'. The Petitioner has intimated the Respondent about the dishonour of the cheques/instruments by sending notices inter alia dated 22.09.2015, 24.09.2015, 30.09.2015 (2 Notices) and 01.10.2015 requesting the Respondents to clear the amounts mentioned in the cheques. In spite of issuing the said notices the outstanding amounts including the amounts covered under the cheques issued have not been cleared and discharging by the Respondent Company till date. (5) It is stated that the total outstanding amount due and payable from the Respondent Company as on 05.06.2015 is Rs. 39,78,250/- (Rupees Thirty Nine Lakhs Seventy Eight Thousand Two Hundred and Fifty Only) and after adding the cheque return charges, the total amount due and payable by Respondent Company is Rs. 39,86,250/-(Rupees Thirty Nine Lakhs Eighty Six Thousand Two Hundred Fifty Only). In addition thereto, the Respondent is liable to pay the interest at the rate of 18% on the invoice amounts from the date of the invoice till actual payment. The interest pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent at its registered office under Registered Post with Acknowledgement Due (RPAD). Upon the receipt of the legal notice dated 13.10.2015, the Respondent has sent a reply dated 26.10.2015 expressing their financial difficulties and has requested the Petitioner for one week time to clear the outstanding due. As requested by the Respondent, the Petitioner has waited for more than one month and has given sufficient time than what was requested by the Respondent in their reply letter dated 26.10.2015. (7) It is stated that the Respondent is legally indebted for a sum of Rs. 47,06,719/- (Rupees Forty Seven Lakhs Six Thousand Seven Hundred and Nineteen Only) and liable to reimburse the outstanding amount which the Petitioner is legitimately entitled from the Respondent. The Respondent was served with a statutory notice under Section 433 (e) and 434 of the Companies Act, 1956. Since the Respondent has failed to refund the outstanding amount after the service of the statutory notice under Section 433(e) and 434, it should be deemed that the Respondent is unable to pay its debt and in such an event it would be just and equitable that the Respondent be wound up by an order of this Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any reply or compliance so far i.e. 27.02.2020. 5. Heard Mr. Vivek B.N., learned Counsel for the Petitioner, and Mr. G. Venkatesh, learned Counsel for the Respondent. We have carefully perused the pleadings of both the Parties and extant provisions of Companies Act, 1956/2013 and the law on the issue. 6. Mr. Vivek B.N., learned Counsel for the Petitioner, has once again asked adjournment to take necessary steps to comply with provisions of Code. 7. The Respondent has filed a Memo of submissions dated 27.02.2020 by inter alia contending as follows: a. The present Company Petition already stands abated in terms of the Companies (Transfer of Pending Proceedings) Rules, 2016, Section 434(1)(c) of the Companies Act, 2013 (for short, the '2013 Act) was notified and came into force with effect from 15.12.2016. On and from that date, all proceedings relating to winding up, among other proceedings under the Companies Act, 1956 (for short, the '1956 Act'), pending immediately before such date before. High court shall stand transferred to the Tribunal. b. The first proviso states that only such proceedings relating to winding up of Companies shall be transferred to the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner shall be eligible to file fresh Application u/s 9 of the Code. g. The second proviso to section 434910(c) of the 2013 Act does allow the parties to any proceedings to make an Application for transfer of such proceedings to the Tribunal. The court may by an order transfer such proceedings to the tribunal and the proceedings so transferred shall be dealt with by the Tribunal as an application under the Code. It is submitted that in case of transfer under second proviso to section 434(1)(c), there would be no application of the provisions of TPP Rules, 2016 and not necessity for furnishing the information as required under section 7, 8, or 9 of the Code. However, these would be applicable only in respect of the pending matters immediately before commencement of IBC (Amendment) Ordinance, 2018 (i.e. 06.06.018). Since the present Company Petition was no longer pending before the High Court on that date by virtue of it being transferred on 15.12.2016 by automatic operation of law, the second proviso can have no application. It also does not appear that the transfer of the petition by the High Court was on an a\Application made by the Petitioner. h. It is further pointed ou ..... 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