Afzal Khan v. Golf Technologies Pvt. Ltd.

1. This is a petition under Section 433(e) and (f) read with Section 434(1) as well as Sections 439, 449 and 450 of the Companies Act, 1956 moved by the petitioner seeking winding up of the respondent company – Golf Technologies Pvt. Ltd. It is predicated upon the non-payment of a sum of Rs. 80,20,725/- by the respondent company as well as due interest.

2. Briefly stated, the petitioner is a proprietor of M/s Monalisa Consturctions, and was selected as the successful bidder for a tender floated by the respondnent company for the construction of a commercial project on plot No. 37, Marol Industrial Estate, MIDC, Andheri (East), Mumbai – 400093, vide Letter of Intent dated 01.09.2010. Thereafter, Articles of Agreement dated 14.09.2010 were executed between the parties, setting out the terms and conditions for the contract. It is stated that although a Completion Certificate dated 10.09.2012 was issued, indicating that the petitioner has satisfactorily completed the work, certain bills raised were not cleared by the respondent, which were acknowledged by the respondent. In this regard, it is submitted that an acknowledgement of the amount due was made by the respondent vide letter dated 30.10.2013.

3. Despite repeated reminders, the respondent company failed to make good its dues. A legal notice was sent by the petitioner on 07.08.2014 demanding Rs. 80,20,725/- along with due interest to the tune of Rs. 21,65,596/- totaling to an amount payable of Rs 1,01,86,321/-. Thereafter another letter was sent on 14.01.2015 following which a statutory notice dated 07.07.2015, under Section 433 and 434 of the Companies Act, 1956 was served upon the respondents. However, the respondent failed to repay the amount due, and as a result of the inability of the respondent to liquidate its liability, the present winding up petition has been moved by the petitioner.

4. It appears that the respondent company is unable to discharge its debt in the ordinary course of business. However, on a perusal of the record, it is apposite to point out that the present winding up petition is a complete non-starter. Examination of the record further shows that neither a Provisional Liquidator nor an Official Liquidator has been appointed to the respondent company. As such, the present winding up petition is still at a nascent stage and no substantive orders have been passed in this company petition.

5. The Insolvency and Bankruptcy Code, 2016 as well as the Companies Act, 2013, have since been enacted. It is the opinion of this court that the present petition does not deserve to continue before this court, and the same stands to be transferred to the National Company Law Tribunal[1]. In this regard, it is relevant to consider Section 434 of the Companies Act, 2013 which provides for the transfer of proceedings relating to winding up, pending before High Courts, to the NCLT and reads as under:

6. It is also expedient to consider the decision of the Supreme Court in the case titled Action Ispat and Power Limited v. Shyam Metalics and Energy Limited[2], whereby it was held that those winding up proceedings pending before High Courts, which have not progressed to an advanced stage, ought to be transferred to the NCLT. The relevant extract of the said decision is as follows:

7. In view of the foregoing discussion, it is the opinion of this Court, that given the inceptive nature of the present winding up petition and furthermore, since no substantive proceedings have been undertaken towards winding up of the company, the present petition does not deserve to be continued before this Court. This petition is at a very nascent stage and no effective orders as such have been passed towards the winding up of the company.