TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 127
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.... Kashish Chhabra, Ms. Nitya, Maheshwari, Ms. Sabeeh Akhtar & Ms. Mrinalini, Advs. for R-2/Mr. Sunil Dahiya with R-2 in person, Mr. Sumit K. Batra, SC for OL., Ms. Purti Gupta, Ms. Henna George, Ms. Sunidhi Sah, Ms. Pooja Aggarwal & Ms. Khushi Sharma, Advs. for Applicant in CA. 608/25. Mr. Bharat Gupta, Mr. Varun Tyagi, Mr. Vishesh Chauhan, Ms. Akshita, Harjai, Mr. Ishan Srivastava, Ms. Shagun Gupta, Ms. Snigdha S. Jena, Advs. for Allottees - Investors, Sanghars Samiti and Vigneshwara Victims Welfare Association, Mr. Dhruv Wadhwa, Adv. for Applicant in CA. 948/24 & 239/25. ORDER TARA VITASTA GANJU, J.: (Oral) CO.APPL. 608/2025 [Transfer of Proceedings To NCLT] 1. This is an Application filed by the Applicant/Mr. Anil Batra, who states that he is an Allottee of a flat in a residential scheme floated by M/s Vigneshwara Developers Pvt. Ltd. It is contended that the facts and the circumstances as applicable in the M/s Vigneshwara Developwell Pvt. Ltd are also applicable in the present case. 2. By way of this Application, the Applicant seeks directions for transfer of the proceedings to the National Company Law Tribunal [hereinafter referred to as the "NCLT"]. Learned Coun....
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....ject or handover possession of the allotted commercial units to the Applicant and several other persons [collectively referred to as the "Allottees"]. 10. The parties have jointly contended that given the possibility of a revival of the Respondent Company, for the benefit of the public at large, they have no objection to the transfer of these proceedings to NCLT. 11. The short question that falls for consideration before this Court is whether this Petition is at a stage where no irreversible steps have been taken towards liquidation, and should be transferred to the NCLT. 12. Briefly the facts are that the winding up Petition was admitted by the Court against the Respondent Company - Vigneshwara Developers Pvt. Ltd., on 22.07.2016 at the instance of several allottees, who are also financial creditors in terms of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the "IBC"]. 12.1 On 27.01.2020, a scheme for revival of the Company was approved by this Court. Subsequently, and in view of no concrete proposals coming forth and non-infusion of the requisite funds by the propounders of the Scheme, the Scheme was set aside by an order dated 04.01.2023. On tha....
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....cy or initiation of criminal proceedings, does not in any manner operate as a bar to the institution or continuation of proceedings under the IBC including preferential undervalued and fraudulent transactions under Sections 43 to 51 of the IBC and Section 66 of the IBC before the NCLT. In view thereof, it is urged that the objections sought to be raised by the promoters of the Respondent Company are liable to be rejected. 13.4 Learned Counsel for the Applicant lastly submits that this is a fit case for transfer of proceedings to the NCLT since the Applicant and hundreds of other similar investors, who have been deprived of their hard-earned money by the Respondent Company, would be benefitted. It is further contended that the Applicant is similarly placed as the hundreds of other Applicant's. ARGUMENTS BY THE OFFICIAL LIQUIDATOR 14. Learned Counsel for the Official Liquidator has clarified that the Official Liquidator is in custody of certain properties and assets of the Respondent Company and Vigneshwara Developwell Pvt. Ltd. It has also been stated therein that the Official Liquidator has had these properties valued and has submitted the valuation report thereto earlier.....
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....a possibility of preserving the corporate debtor as a "going concern" to maximize the value of its assets for the benefit of all stakeholders. 14.3 Lastly, learned Counsel for the Official Liquidator has also submitted that Serious Fraud Investigation Office [SFIO] has been conducting an extensive investigation in the matter of the Respondent Company and 16 other group companies on account of wrong doings and diversion of funds and assets of the companies for the personal benefits of its Ex-Directors. ARGUMENTS BY THE EX-DIRECTORS 15. Learned Senior Counsel for the Ex-Directors reiterates his contention that in view of the Judgment passed by this Court on 12.09.2025 in matter Vigneshwara Developwell case he has no objection, if the prayers (a) and (b) of this Application are allowed by this Court. ARGUMENTS BY THE ALLOTTEES 16. In addition, arguments have also been conducted by the Investors Sanghars Samiti and Vigneshwara Victims Welfare Association. Learned Counsel appearing for these parties have made submissions supporting the Applicant. Learned Counsel submits that where no actual sale of properties has taken place and nothing irreversible has been done, the mat....
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.... Justice Vinod Goel (Retd.) (Mobile No. 9910384637) is appointed as the Court Appointed Supervisor to supervise implementation of the Scheme/ The Propounders would be entitled to implement the Scheme, as above, under supervision of the Court Appointed Supervisor. (ii) The Court Appointed Supervisor will ensure that the initial task as stipulated in the Scheme are completed expeditiously in a time bound manner. The OL will permit the promoters to implement the Scheme, as stated above, under the supervision of the Court Appointed Supervisor. (iii) The propounders of the Scheme will be permitted to open a separate escrow account where all revenues received pursuant to the revival scheme would be deposited. The escrow account would be operated under the supervision of the court appointed supervisor. (iv) The Court Appointed Supervisor is empowered to pass any directions or orders to the promoters for the purpose of implementing of the Scheme. (v) The functioning of the Scheme shall be reviewed by the Company Court after three months. If necessary, this court would be at liberty to pass further directions as the developments may require. ....
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....w: "3. The Scheme provides that the Propounders i.e., ex-Management of Companies (in Liqn), will clear dues of statutory authorities, which includes HSIIDC and DTCP, as well as outstanding dues towards landowners, after which, the allotted area under the Projects in question, was to be handedover to the concerned Associations/allottees on "as-is-where-is" basis. This fundamental step has not been taken till date. Ms. Reena Choudhary, counsel for exManagement/Propounders of the Scheme, cites a HSIIDC circular dated 27th September, 2021, which, inter-alia, allows part-payment to be made for the purpose of reviving the iValley Project. This reliance is misplaced as the circular is not contemplated under the Scheme. The Court finds no reason to make a modification to that effect as the Propounders are only attempting to prolong the proceedings and have exhibited no intention to comply with the Scheme. As noted above, the Scheme is a non-starter; Propounders of the Schemel ex-Management who had to infuse funds have failed to do so. The order dated 27th July, 2022 takes note of the unfortunate state of affairs demonstrating lack of interest to implement the Scheme. In fact, the ....
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....ng before the High Courts, to the NCLT, which is extracted below: "434. Transfer of certain pending proceedings.-(1) On such date as may be notified by the Central Government in this behalf,- (a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10E of the Companies Act, 1956 (1 of 1956), immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispose of such matters, proceedings or cases in accordance with the provisions of this Act; (b) any person aggrieved by any decision or order of the Company Law Board made before such date may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order: Provided that the High Court may if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days; (c) all proceedings under the C....
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.... before the Company Law Board or the courts, to the Tribunal under this section." [Emphasis Supplied] 21. It is no longer res-integra that unless irreversible steps, such as the sale of assets have occurred, pending winding up proceedings ought to be transferred to the NCLT in terms of the 5th proviso to Section 434(1)(c) of the 2013 Act. 22. The Supreme Court in Action Ispat case has held that where winding up petition pending before the High Court has not progressed to an advanced stage, it ought to be transferred to the NCLT. The Supreme Court has held that even post-admission of a winding up Petition, and after the appointment of a liquidator, the discretion is vested in the Company Court to transfer such Petition to the NCLT. It was emphasised by the Court that even post admission of winding up Petition and appointment of liquidator, as long as no actual sale of movable for immovable property of the company in liquidation has taken place and nothing irreversible is done, proceedings before the Company Court can be transferred to the NCLT. The Court cautioned that it is only when the winding up proceedings have reached an irreversible state making it impossible for the....
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....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 of the company, so far as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court staying its hands on a transfer application made to it by a creditor or any party to the proceedings. It is only where the winding-up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to NCLT to now be decided in accordance with the provisions of the Code. Whether this stage is reached would depend upon the facts and circumstances of each case." [Emphasis Supplied] 23. The Supreme Court in the Kaledonia Jute & Fibres case has, while deciding whether a winding-up proceeding ....
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....phasis Supplied] 24. In addition, the Supreme Court in the A. Navinchandra case has held that the pendency of admitted winding up proceedings is not a bar to proceedings under Section 7 or Section 9 of the IBC. It was held that Section 7 of the IBC is an independent proceeding, which has to be tried on its own merits and that stands by itself. It was further held that the discretionary provision under the 5th proviso to Section 434(1)(c) of the 2013 Act cannot prevail over the jurisdiction of the NCLT under the IBC, once the parameters of Section 7 of the IBC and the other provisions of the IBC have been met. The relevant extract of the A. Navinchandra case is below: "29. Dr Singhvi and Shri Ranjit Kumar have vehemently argued that SREI has suppressed the winding-up proceeding in its application under Section 7 IBC before NCLT and has resorted to Section 7 only as a subterfuge to avoid moving a transfer application before the High Court in the pending winding-up proceeding. These arguments do not avail the appellant for the simple reason that Section 7 is an independent proceeding, as has been held in a catena of judgments of this Court, which has to be tried on its own....
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....ed on the Scheme by the Company Court at that time. Additionally, the parties were also in settlement talks before the Delhi High Court Mediation and Conciliation Centre. Given these circumstances, it was directed that the proceedings before the NCLT should not continue as the order of NCLT would be an interdiction to the proceedings pending before the Company Court. 28. As discussed above, the Scheme was approved by the Court on 27.01.2020 and the Ex-Directors/Propounders of the Scheme were allowed by this Court to take steps to revive the Company. However, inspite of the lapse of 3 years, thereafter, the Court found that pre-requisites for the implementation of the Scheme had not been worked out. The statutory authorities were not paid nor were the claims of the land owners settled. The land for the projects could also not be handed over since the Propounders of the Scheme were in judicial custody. Since the Scheme had become unworkable, the Scheme was set aside by this Court on 04.01.2023. 29. Although the Official Liquidator has taken over the assets of the Company, it has confirmed in its Reply that no other irretrievable steps such as sale of the assets have been taken ....