TMI Blog2022 (7) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... he section does not contemplate proceedings being automatically transferred to the Tribunal. There is an element of discretion which the Company Court retains in respect of pending proceedings whether to exercise the power to transfer or not depending on the facts and circumstances of each case. Despite the pendency of the winding up proceedings for more than six years, there is nothing to demonstrate that an irreversible situation has arisen which justifies this Court in retaining this proceeding. None of the assets of the company (in liquidation) have been sold. There is nothing in the Status Report filed by the Official Liquidator to demonstrate that the Official Liquidator has taken any steps whatsoever to make it impossible to set t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - CA/15/2021, CP/560/2011 - - - Dated:- 17-5-2022 - Mr. Justice Ravi Krishan Kapur, J. For the petitioner : Mr. Debdut Mukherjee, Adv Mr. Avirup Chatterjee, Adv Mr. Mr. Soumo Roy, Adv. For the Official Liquidator : Mr. Subhadip Biswas, Adv. For the Indian Bank : Mr. Rajat Kanti Jha, Adv. ORDER Ravi Krishan Kapur, J. : 1. This is an application seeking directions on the Official Liquidator to publish a sale notice in respect of the assets of Maheswary Ispat Limited [the company (in liquidation)]. 2. The admitted facts of this case are that, by an order dated 21st June, 2016 read with the order dated 28th November, 2016, Maheshwary Ispat Limited was directed to be wound up. Pursuant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and the proceedings so transferred shall be dealt with by the Tribunal as on application for initiation of corporate insolvency resolution process under the Insolvency and bankruptcy Code, 2016 (31 of 2016) 4. In Action Ispat Power (P) Ltd. vs. Shyam Metalics Energy Ltd. (2021) 2 SCC 641, the Hon ble Supreme Court held as follows:- 25. Given the aforesaid scheme of winding up under Chapter XX of the Companies Act, 2013, it is clear that several stages are contemplated, with the Tribunal retaining the power to control the proceedings in a winding-up petition even after it is admitted. Thus, in a winding-up proceeding where the petition has not been served in terms of Rule 26 of the Companies (Court) Rules, 1959 at a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the liquidation proceedings, the Official Liquidator had taken possession and control of the registered office and the factory premises, records and books no irreversible steps towards winding upon of the company had otherwise taken place. The ratio in Action Ispat Power (P) Ltd. (supra) has subsequently been followed in A. Navinchandra Steels (P) Ltd. vs. SREI Equipment Finance Ltd. (2021) 4 SCC 435. 5. Ordinarily, there is a strong presumption that Civil Courts have jurisdiction to decide all questions of civil nature. The exclusion of jurisdiction of Civil Courts must either be explicitly expressed or clearly implied. In my view, the section does not contemplate proceedings being automatically transferred to the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the argument that it is only upon filing of a formal application, that a proceeding can be transferred to the National Company Law Tribunal under the aforesaid section. What is of essence is that the Court must examine the facts of each case to ascertain whether an irreversible situation has arisen or not or and the stage of the liquidation proceedings. The making of an application is a mere formality and is not imperative in nature. In fact, to continue with the winding up proceedings simply because no application for transfer has been filed would tantamount to committing a manifest jurisdictional error. In my view, in a given case, after examination of the relevant facts if the Court suo moto finds that the conditions for transfer are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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