M/S. U.D. Global Holdings Ltd., Dubai v. M/S. Gupta Corporation Pvt. Ltd., Gupta Tower Nagpur

1 cmp 44.2016.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

Company Petition No. 44 of [M/s. U. D. Global Holdings Ltd., Dubai, UAE or Anil Kr. Singh, Fort, Mumbai ..vs.. M/s. Gupta Corporation Pvt. Ltd., Civil Lines, Nagpur] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R. G. Kavimandan, Advocate h/f Mr. D. R. Khapre, Advocate for the petitioner CORAM : ANIL L. PANSARE J .

DATED : 05-01 -202 Company petition has been filed in the year 2016. On 14-10-2016, notices were issued. The respondent has been served but none appear for the respondent. 2.

The Supreme Court in the case of Action Ispat and Power Pvt. Ltd. Vs. Shyam Metalics and Energy Ltd. [(2021) 2 SCC 641] has held in paragraph no. 25 as under.

"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-admission stage, given the beneficial result of the application of the Code, such winding up proceeding is compulsorily transferable to 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

2 cmp 44.2016.odt 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 a transfer application made to it by a creditor or any party to the proceedings. It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to now be decided in accordance with the provisions of the Code. Whether this stage is reached would depend upon the facts and circumstances of each case."

3.

Admittedly, the petition under question has not reached the stage of admission. In view thereof and considering the position of law as explained by the Supreme Court in the case of Action Ispat and Power Pvt. Ltd. Vs. Shyam Metalics and Energy Ltd., the petition will have to be transferred to NCLT, Mumbai for disposal in accordance with law. Hence, following order.

ORDER

(i) Company Petition No. 44/2016 stands transferred to National Company Law Tribunal, Mumbai for disposal in accordance with law.

3 cmp 44.2016.odt (ii) The petitioner shall appear before the National Company Law Tribunal, Mumbai on 5-2-2024.

(iii) Registry to do the needful.

(Anil L. Pansare, J.) wasnik