TaxTMI 
TaxTMI 
2017 (10) TMI 571
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....dings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up of a company under clause (e) of Section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and, where the petition has not been served on the respondent under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of Section 419 of the Companies Act, 2013 exercising territorial jurisdiction to be dealt with in accordance with Part II of the Code: Provided that the petitioner shall 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 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal upto 15th day of July, 2017 failing which the petition shall stand abated: Provided further that any party or parties to the petitions shall, after the 15th day of July, 2017, be eligible to file fresh applications under sections 7 or 8 or 9 of the Code, as the case may be, in accordance with the ....
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....t did not return thereafter despite repeated demands. For this, the petitioner has served a demand notice Annexure P-5, dated 11.08.2016. The petitioner has also relied upon the balance sheet of the respondent company as on 05.12.2013 Annexure P-4 duly signed by two of the Directors of the respondent. On the last page of balance sheet, Annexure P-4, contains the detail of the unsecured loans/advances as on 05.12.2013 signed by two of the Directors of the respondent company. One of the person mentioned in this list of unsecured creditor is Visa Drugs & Pharmaceuticals Private Limited (the petitioner herein) for whom, an amount of Rs. 10,00,000/- was due. 5. The petitioner sent copy of this application to the respondent Corporate Debtor at both the addresses by registered post, which the "Financial Creditor" is required under sub-rule (3) of Rule 4 of the Rules and the same was delivered to the Corporate Debtor on 21.07.2017 for which, no dispute has been raised on behalf of the Respondent- Corporate Debtor. 6. When the matter was listed on 24.07.2017, appearance was made on behalf of the respondent Corporate Debtor. It was, however, noted that while sending copy of the applica....
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....ile shareholders of the respondent and the amount of the creditors having been paid, the transfer of business was effected. That share purchase agreement is at Annexure R-2. 10. As per the terms of the share purchase agreement, the first party i.e. the then shareholders of the respondent were to close all the bank accounts in the name of the company on 09.12.2013. It was for the shareholders of respondent company referred to as the first party in the agreement, to clear all the previous liabilities and unsecured loans including the amount in respect of the petitioner, if any. The payment of the amount was a precondition to the transfer of the business and the same has been acted upon. The dues, if any, to the petitioner is stated to have been paid by virtue of MOU, dated 18.02.2013 and the share purchase agreement dated 06.12.2013. It was further stated that the amount having been advanced by the petitioner to the respondent on 10.12.2012, the petition filed in the Hon'ble High Court on 07.11.2016 was also barred by limitation. 11. It was further stated that the petitioner cannot rely upon the acknowledgement in the nature of balance sheet dated 05.12.2013 as the same was....
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....ment was executed between all the shareholders of the Respondent-Corporate Debtor as the first party, M/s Jupiter Strips Pvt. Ltd. as the second party and the "Corporate Debtor" M/s Swan Aluminiums Private Limited on 06.12.2013. This agreement clearly says that Authorised and paid up share capital of the respondent-company was Rs. 3 crores divided into 30,00,000 equity shares of Rs. 10/- each and the first party, held the 100% shareholding of the respondent. As per clause 2 of the agreement, Annexure R-3 at page 26 of reply, the sale price of 30,00,000 equity shares was determined at Rs. 1,40,42,960/-. The total sale consideration for the rights in the company along with its business, land, building, plant and machinery as reflected in MOU dated 18.02.2013 was agreed at Rs. 8,70,00,000/-. 18. As per clause 3 of the agreement, the first party stated that it has received the entire sale consideration as full and final payment as arrived at in the MOU dated 18.02.2013 and nothing was outstanding on account of the sale consideration of 100% shareholding of the company and transferred 100% of the controlling interest in the company along with the business, land, building etc. 19. ....
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....which, therefore, according to the learned counsel amounts to an acknowledgement of the debt. 22. The fact of the matter is that such a contest could be made in the petition filed by the other unsecured creditors who were the members of the respondent at that time and party to the agreement, but so far as the petitioner is concerned, he was neither a shareholder nor a party to the MOU or share purchase agreement and there is no evidence forthcoming on behalf of the respondent that the petitioner's financial debt, which the respondent owed to him was paid. In view of the admission of the existing liability in the share purchase agreement, to which the respondent was also a party. Even the Jupiter Strips Pvt. Ltd., which is controlling the respondent now, was also a party to the agreement and, therefore, the learned counsel for respondent was unable to challenge the plea of the petitioner being a "Financial Creditor". 23. In case, the other shareholders were liable to clear the dues of the other unsecured creditors, the petitioner cannot be made to suffer on that account. The petitioner thus, falls within the term 'financial creditor', as defined in sub-section (7) ....
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....e name of the respondent company in 2012, whereas the company petition was filed in November, 2016 before the Hon'ble High Court of Punjab and Haryana. The learned counsel for petitioner, however, contended that there is an acknowledgement of the outstanding amount of liability as shown in the balance sheet prepared upto 05.12.2013 and therefore, the petition, which was filed in November, 2016 before the Hon'ble High Court is within limitation. In the share purchase agreement dated 06.12.2013 Annexure R-2 the correctness of this balance sheet is also admitted. 26. With regard to the plea of limitation, the Hon'ble National Company Law Appellate Tribunal has held in "Neelkanth Township and Construction (P.) Ltd. v. Urban Infrastructure Trustees Limited" Company Appeal (AT) (Insolvency) No. 44 of 2017, that the plea of claim being barred by limitation under the Code, is not based on law. It was further held that there is no provision under the Code to suggest that the law of limitation, 1963 is applicable to I & B Code. The Hon'ble Appellate Tribunal further held that the IB code, 2016 is not an Act for recovery of money claim, it relates to initiation of Corporate....