2022 (7) TMI 300

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....any (in liquidation)]. 2. The admitted facts of this case are that, by an order dated 21st June, 2016 read with the order dated 28th November, 2016, Maheshwary Ispat Limited was directed to be wound up. Pursuant to the aforesaid, the Official Liquidator had taken possession of the assets of the company (in liquidation) as far back as in 2017 and 2018. Admittedly, none of the assets of the company (in liquidation) have been sold till date. 3. In view of the aforesaid, a point of jurisdiction has arisen as to whether this Court has the power to exercise jurisdiction in view of the 5th proviso of Section 434(1(c) of the Companies Act, 2013 ('the Act'). By an amendment dated 7 August, 2018, the 5th proviso to Section 434(1(c) was added wh....

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....er 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 preadmission 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 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....

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....e. The exclusion of jurisdiction of Civil Courts must either be explicitly expressed or clearly implied. In my view, the section does not contemplate proceedings being automatically transferred to the Tribunal. There is an element of discretion which the Company Court retains in respect of pending proceedings whether to exercise the power to transfer or not depending on the facts and circumstances of each case. The only test as laid down by the Supreme Court is whether any irreversible situation has arisen warranting the Court to stay its hands and not transfer the proceeding to the NCLT. However, the clear legislative intent is to oust the jurisdiction of the Court and transfer all proceedings to the Tribunal (except in limited cases) with....