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TaxTMI 
TaxTMI 
2018 (9) TMI 595
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....tor for winding up of Impex Ferotech Ltd. (hereinafter referred to as "the company") on the ground that the company is commercially insolvent. The winding up application is being contested by the company who has filed its affidavit-inopposition. The petitioning creditor has also filed its affidavit-in-reply. On August 01, 2018 when the winding up application was taken up for hearing and the learned Senior Counsel appearing for the petitioning creditor started his argument in the said application. At this juncture, the learned Senior Counsel appearing for the company submitted that the company has filed an application, C.A. No. 220 of 2018 praying for transfer of the winding up application before the National Company Law Tribunal, Kolkata....
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.... exercise of power conferred by Article 123(1) of the Constitution of India, the President has passed Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 providing, inter alia, that in sub-section (1) Section 434 of the Companies Act, 2013 (as substituted by paragraph 34 of the Schedule XI to the Code of 2016), a second Proviso shall be inserted in clause (c) to the effect that any party or parties to any proceeding relating to the winding up of the companies pending before any Court, immediately before the commencement of the said ordinance may file an application for transfer of such proceeding and the Court may by order transfer such proceedings to the NCLT. It was argued for the company that in terms of the second Proviso incorpo....
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....ions contained in Section 7 of the IBC, 2016 the NCLT will admit the application of the said bank, for initiating corporate insolvency resolution process against the company, only after satisfying that the default complaint of by the bank has occurred and the application of the bank is complete and there is no disciplinary proceedings pending against the proposed resolution professional. It was further submitted that as per the provisions of the IBC 2016, the petitioning creditor has to be treated as an operational creditor of the applicant company and the petitioning creditor cannot be a member of the committee of the creditors to be constituted by the resolution professional under the provisions of Section 21 of the Code of 2016,. It was ....
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....tion 255 of the IBC, 2016 provides for amendment of the Companies Act, 2013 (in short "the Act of 2013") in the manner specified in the Schedule XI thereof. Clause 35 of Schedule XI of the IBC,2016 amended section 434 of the Act of 2013 to the effect, inter alia, that proceedings relating to the winding up of shall be transferred to the Tribunal that are at as only prescribed by the Central Government. Now, as per Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 framed by the Central Government and published by the notification dated December 07, 2016 all petitions relating to winding up under clause (e) of Section 433 of the Companies Act, 2013 on the ground of inability to pay debts pending before the High Court and w....
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....al. The company, as the applicant in this application could not draw my attention to any provision of the IBC, 2016 or any other statutory provision or any Rule or Regulation providing for immediate admission by the NCLT of any winding up application transferred by the High Court, without the petitioning creditor in the winding up application (who becomes the operational creditor under the IBC 2016) complying with the requirement of furnishing particulars under Rule 8 or 9 of the IBC,2016. For the purpose of considering the merit of the present application filed by the company I think it expedient first to ascertain the scope and effect of the second Proviso inserted to clause (c) of sub-section (1) of Section 434 of the Act of 2013 which i....