TaxTMI 
TaxTMI 
2026 (6) TMI 648
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....plication for transfer of the pending winding up proceeding was filed at the behest of any party. He refers to Section 434 of the Act of 2013 and, particularly, to the proviso to Section 434(1)(c) thereof. He submits that, the last proviso to Section 434(1)(c) of the Act of 2013 requires an application to be made for transfer of the winding up proceeding. 4. Learned Senior Advocate appearing for the appellant relies upon 1985 (1) SCC 591 (S. Sundaram Pillai & Ors. vs. V. R. Pttabiraman & Ors.) in support of the proposition that the proviso can regulate the provisions of the statute. He contends that, in the facts and circumstances of the present case, the last proviso to Section 434(1)(c) of the Act of 2013 changed the very concept of the intendment of the enactment by insisting on the mandatory condition of an application being filed in order to make the enactment workable. 5. Learned Senior Advocate appearing for the appellant refers to Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 and submits that, an application for transfer is necessary. Company Court cannot transfer a winding up petition suo moto. 6. Learned Senior Advocate appearing for the a....
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....The restrictions under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stages at which a transfer could be ordered, did not apply to the case of a transfer covered by the 5th proviso to Clause (5) of Sub-section (1) of Section 434. In the facts and circumstances of that case, the impugned order of the High Court rejecting the petition for transfer of the winding up proceeding on the basis of Rule 26 of the Companies (Court) Rules, 1959 was held to be erroneous and set aside. 12. In Action Ispat and Power Pvt. Ltd. (supra) Hon'ble Supreme Court held as follows: "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 ?" 13. Question raised in paragraph 14.4 of Action Ispat and Power Pvt. Ltd. (supra) was answered in paragraph 25 which is as follows:- "25. Given the aforesaid scheme of winding up u....
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....ts and properties of the company (in liquidation). There was a status report filed by the Official Liquidator suggesting that three immovable properties constitute a portion of the assets of the company (in liquidation). It also noted that, save and except taking possession of the assets of the company (in liquidation), the Official Liquidator did not take any effective steps in the liquidation proceeding. The immovable property remained unsold. 17. In the facts and circumstances of the present case, therefore, there is no material on record to arrive at the finding that, the winding up proceeding attained an irreversible or irretrievable stage as enunciated in Action Ispat and Power Pvt. Ltd. (supra) and A. Navinchandra Steels Pvt. Ltd. (supra). 18. Rewards placed before Court as well the recordings in the impugned Order establish that the learned Judge sought a report from the Official Liquidator as to the status of the proceedings pending prior to exercising powers under Section 434 of the Act of 2013. 19. The next issue is whether or not, the Company Court can suo motu transfer the winding up proceeding which did not attain the irreversible or irretrievable stage. Such....
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....ceedings; or (ii) the proceedings relating to winding up of companies which have not been transferred from the High Courts; shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959.] Provided also that proceedings relating to cases of voluntary winding up of a company where notice of the resolution by advertisement has been given under sub-section (1) of section 485 of the Companies Act, 1956 but the company has not been dissolved before the 1st April, 2017 shall continue to be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959. Provided further that any party or parties to any proceedings relating to the winding up of companies pending before any Court immediately before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018, may file an application for transfer of such proceedings and the Court may by order transfer such proceedings to the Tribunal and the proceedings so transferred shall be dealt with by the Tribunal as an application for initiation of corporate insolvency resolution process under the Insolvency a....