2023 (2) TMI 1283

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....ings to NCLT) 1. Mr. Ashish Garg, ex-Director and shareholder of Shree Shyam Cotspin Ltd. PH [hereinafter, "the Company"], has filed the instant application under the fifth proviso (sic) to Section 434(1)(c) read with Section 290 of the Companies Act, 2013 for transfer of present winding-up proceedings to the National Company Law Tribunal, Delhi ["NLCT"], relying upon the judgment passed by the Supreme Court in Action Ispat and Power Pvt. Ltd. v. Shyam Metalics and Energy Ltd. [(2021) 2 SCC 641] 2. Mr. Sameer Rohatgi, counsel for Applicant, urges that since no irreversible steps have been taken towards the winding up of the Company, the Court must exercise its discretion vested under the aforesaid provisions and transfer the matter to....

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....ite to briefly take note of the preceding proceedings/ facts: 4.1. On 10th June, 1999, the Company filed a reference before the Board for Industrial and Financial Reconstruction ["BIFR"] under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 ["SICA"] [The same was registered as Case No. 159/1999] The BIRF declared the Company as a 'sick company' vide order dated 11th November, 1999. 4.2. In light of BIRF's recommendation under Section 20(1) of SICA dated 13th February, 2003, the Court directed winding up of the Company and appointed the Official Liquidator ["OL"] as the Liquidator, vide order dated 08th December, 2004. 4.3. On 24th January, 2005, direction was issued to Allahabad Bank to issue sale proc....

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.... 4.7. By way of Assignment Deed dated 27th September, 2013, Allahabad Bank assigned debt of the Company to Pegasus, who was later substituted as a party [Vide order dated 05th December, 2014] Subsequent thereto, Pegasus took possession of the Company's entire assets and undertook further steps for sale thereof. 5. In Action Ispat (Supra), the Supreme Court has observed that proceedings may be transferred by a company court to NCLT so long as nothing 'irreversible' is done in winding-up proceedings. Relevant portion of the judgement is extracted hereinbelow: "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 ....

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....on the facts and circumstances of each case" [Emphasis Supplied] 6. It would be pertinent to note that in Action Ispat (Supra), the petition was transferred to NCLT because at the time when such an application was made, not much time had lapsed since appointment of the OL therein and moreover, steps for seizure of company's factory premises had not been initiated. It is for this reason that the Court had opined that no effective or irreversible steps had been taken by the OL. In the present case, as noted above, the sale of Company's assets was effected, but the possession could not be transferred to the Auction Purchaser due to acquisition proceedings. Further, as it manifests, possession of the Company's entire plant and machinery p....