Full Text
HIGH COURT OF DELHI
Date of Decision: 4th April, 2024
1604/2015, CO.APPL. 1605/2015, CO.APPL. 1714/2015
MS. RADHIKA S. ICHHPUNIANI & ANR...... Petitioners
Through: Ms. Vibha Mahajan Seth and Ms. Divyanshi Anand, Advs.
Through: Mr. Bhuvan Gugnani, Mr. Rupender Sharma and Ms. Malvika Arora, Advs.
JUDGMENT
1. The present company petition has been preferred under Section 433 (e) and (f) read with Sections 434 and 439 of the Companies Act, 1956, seeking winding up of the respondent company – M/s. Sudvin Finvest Fairdeals (P) Ltd., on the ground of non-payment of outstanding dues amounting to Rs. 39,03,167/- payable to petitioner No. 1 and Rs. 35,49,867/- payable to petitioner No. 2.
2. Briefly stated, the petitioners herein are the shareholders as well as creditors of the respondent company. It is stated that the abovenoted amounts had been advanced to the company in the form of a loan by the predecessor-in-interest of the petitioners. It is stated that the respondent company was incorporated as a closely held family company, having Late Shri Sudershan Kumar Ichhpuniani and Smt. Vinod S. Ichhpuniani as its first subscribers/directors, and said persons are the parents of the petitioners herein as also respondent NO. 2, upon whom, the shares held by their parents devolved in equal share on the instance of the demise of Late Shri Sudershan Kumar Ichhpuniani and Smt. Vinod S. Ichhpuniani. In this regard, it is stated on behalf of the petitioners that such devolution of shares was acknowledged by respondent No. 2/Director vide email dated 25.03.2014. Despite said acknowledgement, the respondent company as also its Directors did not register the requisite shares in the name of the petitioners, and consequently, legal notices dated 24.04.2014 06.05.2014 were served upon the respondent company in this regard.
3. Besides the said entitlement over the shares, it is stated on behalf of the petitioners that certain amounts were also due to the petitioners in lieu of loans advanced to the respondent company, and the same were duly reflected in the financial statements of the respondent company for the year ending 31.03.2013.
4. From a perusal of the record it is borne out that these winding up proceedings are a complete non-starter. It appears that no effective orders have been passed in this matter and no substantive steps have been taken pursuant to the winding up of the respondent company. Although a Provisional Liquidator was appointed to the respondent company vide order of this Court dated 25.03.2015, said order came to be set aside by a subsequent order of this Court dated 28.08.2017.
5. It would be expedient to consider that during the pendency of the present petition, the Insolvency and Bankruptcy Code, 2016[1] has been enacted, along with the introduction of Companies Act, 2013[2]. Section 434 of the said Act has to be considered, which provides for the transfer of proceedings relating to winding up, pending before High Courts, to the National Company Law Tribunal[3], and reads as under:
1 IBC
2 The Act 3 NCLT proceedings are not reserved by the High Courts shall be transferred to the Tribunal [Provided also that]-
(i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; 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 subsection (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.”
6. Reliance must also be placed on the decision of the Supreme Court in Action Ispat and Power (P) Limited v. Shyam Metalics and Energy Limited[4], the relevant extract of which is provided below:
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 the 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.”
7. The decision of the Supreme Court in Action Ispat (supra) has been relied upon by this court in Citicorp International Limited v. Shiv-Vani Oil & Gas Exploration Services Limited[5] wherein it was held that winding up proceedings pending before High Courts, which are at a nascent stage and have not progressed to an advanced stage, ought to be transferred to the NCLT. It is but evident that the present company petition has not yet reached an advanced stage and no substantive orders have been passed towards the winding up of the respondent company.
8. In light of the foregoing discussion the present winding up proceedings deserve to be transferred to the NCLT.
9. The parties are directed to appear before the NCLT on 15.05.2024.
10. The electronic records of this Court shall be transmitted to the
11. The present company petition, along with pending applications, if any, are disposed of accordingly.
DHARMESH SHARMA, J. APRIL 04, 2024