2018 (6) TMI 492

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....nkruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') for initiation of 'Corporate Insolvency Resolution Process' against 'Shree Ram Urban Infrastructure Ltd.' ('Corporate Debtor'). The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench by impugned order dated 18th May, 2018 dismissed the application as not maintainable in view of the fact that the winding up proceeding against the 'Corporate Debtor' has already been initiated by the Hon'ble High Court of Bombay. 2. The question arises for consideration in this appeal is whether an application under Section 7 of the 'I&B Code' is maintainable when winding up proceeding against the 'Corporate Debtor' has already been initiated. 3. Similar issue fell for cons....

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....a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this Chapter; or (d) a corporate debtor in respect of whom a liquidation order has been made. Explanation.- For the purposes of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor." 29. In view of the aforesaid provision where a winding up proceeding has already been initiated under the Companies Act, 1956 / 2013 by the Hon'ble High Court such cases have not been transferred to National Company Law Tribunal, pursuant to "Companies (Transfer of Pending Proceedings) Rules, 2016", framed by the Central Government. ....

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....y Code, 2016, as applicable." 31. By aforesaid amendment, the legislatures have made it clear that the word "winding up" mentioned in the Companies Act, 2013 is synonymous to the word "liquidation" as mentioned in the I & B Code. 32. In view of the provisions aforesaid, we hold that, if any winding up proceeding has been initiated against the Corporate Debtor by the Hon'ble High Court or Tribunal or liquidation order has been passed, in such case the application under Section 10 is not maintainable. However, mere pendency of a petition for winding up, where no order of winding up or order of liquidation has been passed, cannot be ground to reject the application under Section 10." 18. It is true that the Appellant....

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....in case where 'winding up' proceeding has been ordered by the Hon'ble High Court and thus stands initiated, where is the question of filing an application under section 7 or 9 or initiation of Corporate Insolvency Resolution Process, which, on failure ultimately culminates into liquidation proceedings (winding up proceedings)? The argument can be that once second stage i.e. liquidation (winding up) proceedings has already initiated, the question of reverting back to the first stage of 'Corporate Insolvency Resolution Process' or preparation of Resolution plan does not arise. One can appreciate such stand which can be decided in an appropriate case, but such issue being not involved in the present case, we are not deciding the issue aforesai....