9911796707
TMI Blog2024 (1) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to Rs. 67,70,984/- arising out of a contract for services entered into between the parties. FACTUAL BACKGROUND: 2. Briefly stated, the petitioner company is engaged in the business of providing manpower i.e. labor, supervisors and technical persons for construction and other works, and had been contracted by the respondent company for deploying manpower at their various sites in the year 2008. Said facilities were formalized vide contract dated 01.11.2008 bearing Ref. No. DSC-UP/Link/2008, which contained the terms and conditions entered into between the parties. The contract between the parties was renewed on various occasions thereafter on 01.08.2009, 01.04.2010, 29.09.2010, 01.01.2011 and 01.03.2011. Per the contract, services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 433 and 434 were not served upon the respondent at its registered office. 5. It may be apposite to note that the parties were directed to appear before the Delhi High Court Mediation and Conciliation Centre vide order dated 16.11.2015. The matter was listed for mediation on several dates - 04.12.2015, 21.12.2015 and finally 05.01.2016. However, the mediation was not successful. 6. Subsequent to the mediation failing, the petitioner company moved CO. APPL. 941/2016, seeking permission of this court to withdraw the winding up petition without prejudice, and serve afresh, a legal notice upon the respondent at its registered office. The same was allowed vide order of this court dated 15.03.2016, after which a legal notice under Section 433 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 02.05.2017, wherein the court noted that those winding up petitions, moved under Section 433(e) of the Companies Act, 1956, which have not been served by the petitioner upon the respondent on or before 15.12.2016, which is the date on which the 2016 Rules came into effect, stand to be transferred to the NCLT as provided for under Rule 5 of the 2016 Rules. In the aforesaid judgement, it was further held that the sine qua non for transfer of a winding up petition is the non-service of a pending petition. In this regard, it is the case of the respondent company that the petitioner had served a copy of the petition to the respondent company, to which a reply was also duly filed, prior to the cut-off date of 15.12.2016. 8. It has also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the present winding up petition is a complete non-starter. A perusal of the record shows that the proceedings are at a very nascent stage, so much so that neither a Provisional Liquidator nor an Official Liquidator has been appointed to the respondent company. As such, no substantive orders have been passed in these company petitions. 10. In view of the enactment of the Insolvency and Bankruptcy Code, 2016 as well as the Companies Act, 2013, it is the opinion of this court that the present petition does not deserve to continue before this court, and it would be appropriate for the same to be transferred to the National Company Law Tribunal [NCLT]. In this regard, it is relevant to consider Section 434 of the Companies Act, 2013 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer: Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government. Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal [Provided also that]- (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; or (ii) the proceedings relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding is compulsorily transferable to the NCLT to be resolved under the Code. Even post issue of notice and pre admission, the same result would ensue. However, post admission of a winding up petition and after the assets of the company sought to be wound up become in custodia legis and are taken over by the Company Liquidator, section 290 of the Companies Act, 2013 would indicate that the Company Liquidator may carry on the business of the company, so far as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court staying its hands on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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