TaxTMI 
TaxTMI 
2026 (5) TMI 874
X X X X Extracts X X X X
X X X X Extracts X X X X
....ompany Court, directed transfer of CP/49/2016 to the National Company Law Tribunal, Kolkata (NCLT). Learned Company Court also transferred all connected applications to NCLT. Such order was passed in view of the order dated September 26, 2022 passed in CP/347/2015. 4. APOT/79/2026 is an appeal at the behest of the appellant and directed against an order dated September 26, 2022 passed in CP/347/2015 (hereinafter referred to as the second appeal, for the sake of convenience). By such order, learned Company Court, took note of (2021) 2 SCC 641 (Action Ispat and Power Private Limited Vs. Shyam Metalics and Energy Limited) and (2021) 4 SCC 435 (A. Navinchandra Steels Private Limited Vs. SREI Equipment Finance Limited and Others) and transferred the winding up petition along with connected applications to the NCLT. 5. Learned Senior Advocate appearing for the appellant submits that, the appellant was appointed by the Official Liquidator to protect and preserve the assets of the company (in liquidation). He submits that, the appellant provided security guards. Appellant raised on and submitted bills with the Official Liquidator for the services rendered. Such bills remained unpaid ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rivate Limited (supra) and A. Navinchandra Steels Private Limited (supra) was not brought to the attention of the Court when, it rendered M/S M.S. Glass Industries Limited (In Liqn) (supra). 10. Learned Senior Advocate appearing for the appellant submits that, in the event, the winding up petition is transferred to the NCLT, as directed by the impugned order, then, the expenses that the appellant incurred in protecting and preserving the assets of the company (in liquidation) will not be treated as expenses in the Corporate Insolvency and Restructuring Process and therefore, the entirety of the claim of the appellant for protecting and preserving the assets of the company (in liquidation) will be at stake. He submits that the appellant should not be made to suffer due to the action taken by the Official Liquidator particularly when, such action was led to be taken by the Company Court. He draws the attention of the Court to the principle of custodia legis. He submits that, the action of the Court should not prejudice any party. 11. Learned Senior Advocate appearing for the appellant refers to Section 529(2) of the Companies Act, 1956 and submits that the appellant would be ab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his led to the introduction of the 5th proviso to Section 434(1)(c) which, as has been correctly pointed out in Kaledoniaz, is not restricted to any particular stage of a winding-up proceeding. 14.4. Therefore, what follows as a matter of law is that even post admission of a winding-up petition, and after the appointment of a Company Liquidator to take over the assets of a company sought to be wound up, discretion is vested in the Company Court to transfer such petition to NCLT. The question that arises before us in this case is how is such discretion to be exercised?" 18. Supreme Court in Action Ispat and Power Private Limited (supra), answered the question raised in paragraph 14.4 in paragraph 25 thereof, as follows:- "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 power 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 pre-admission stage, given the beneficial result of the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... such context that such direction was issued by the Company Court. In our understanding, notwithstanding such direction being issued by the Company Court on appraisal of the authorities and the provisions cited before it, Supreme Court in Action Ispat and Power Private Limited (supra) laid down the test as enumerated in paragraphs 14 and 25 thereof. Therefore, Supreme Court did not hold that, payment of expenses incurred by the Official Liquidator is a sine qua non prior to transfer of the proceedings pending before the Company Court to the NCLT. Rather, it directed transfer of winding up proceedings from the Company Court to the NCLT provided that, no irreversible/irretrievable stage or act occurred in the winding up proceeding. 22. The view of A. Navinchandra Steels Private Limited (supra) is same. In fact, it noticed Action Ispat and Power Private Limited (supra) and proceeded to hold that, the test of irreversible irretrievable act/stage is to be applied as one of the grounds for transfer and the other ground is where the company in winding up is near corporate death. 23. A. Navinchandra Steels Private Limited (supra) reached the Supreme Court from orders passed by the Co....