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HIGH COURT OF DELHI
Date of Decision: 12th December, 2023
CHENNAI NETWORK INFRASTRUCTURE LIMITED..... Petitioner
Through: Mr. Aayush Agarwala, Adv.
Through: Ms. Madhani Agrawal, Adv. C15
1946/2017 & CO.APPL. 1947/2017 VIOM NETWORK LIMITED ..... Petitioner
Through: Ms. Raashi Beri, Adv.
224/2023 INDUS TOWERS LIMITED ..... Petitioner
Through: Ms. Raashi Beri, Adv.
TATA TELESERVICES LIMITED & ANR. ..... Petitioners
Through: Ms. Ravina Rai and Ms. Apeksha Dhanvijay, Advs.
JUDGMENT
1. This common order shall dispose of the above mentioned separate petitions filed by above noted four petitioner companies against the respondent company, each seeking winding up of the respondent company, which raise a common question of law. CO.PET. 293/2014
2. This petition has been filed by the petitioner – Chennai Network Infrastructure Ltd. against the respondent company – Loop Telecom Ltd. seeking winding up of the company. The background of the present petition is that the respondent company was registered in 1997 and is engaged in the business of telecommunications. It is licensed to provide telecommunication service in various telecom circles in India All Circles. The respondent company alongwith Aircel Limited, Aircel Cellular Limited, Dishnet Wireless Limited (hereinafter referred to as ‘Aircel Entities’) executed a Master Infrastructure Provisioning Agreement dated 12.10.2009.
3. Later, a Deed of Novation dated 20.07.2010 was executed between the respondent and Aircel Entities, whereby the petitioner came in place instead of Aircel Entities to perform certain obligations under the agreements arising out of the Master Infrastructure Provisioning Agreement and the Deed of Novation.
4. The respondent company became indebted to the petitioner for a sum of Rs.2,10,24,937/- along with interest thereon at the rate of 15% per annum up to 02.12.2013. The said amount was not paid despite the statutory service notice dated 08.04.2014. CO.PET. 777/2014
5. The petitioner company-Viom Networks Limited in the instant petition, states that it provides passive infrastructure services, in furtherance of which it owns/possess various telecommunication sites, including cellular towers, infrastructure and equipment in various licensed Telecom Circles in India. On 05.01.2010, Wireless TT Info Services Limited (WTTIL) and Quippo Telecom Infrastructure Limited (QTIL) had entered into a Master Services Agreement with the respondent company.
6. The respondent company became liable to pay the petitioner a total sum of Rs. 26,42,68,218 /- including interest till 31.08.2014, and lock in charges which were illegally withheld by the respondent company not only as per the terms and conditions of the MSA but also in terms of the trade practice and mercantile usage prevalent in the market. The respondent company is also liable to pay pendent lite and future interest @ 18% per annum in accordance with law. The said amount was not paid by the respondent despite service of the statutory notice dated 17.10.2014. CO.PET. 921/2015
7. The petitioner – Indus Towers Limited has filed this petition against the respondent company in respect of violation of the Terms and Conditions contained the Master Services Agreement dated 23.03.2010 since pursuant thereto, the petitioner company has been providing uninterrupted cellular services to the respondent company.
8. Amount due by the respondent company comes to Rs. 2,76,84,848/- besides an additional amount of Rs. 32,81,711/-,which became due with respect to the energy charges billed by the Petitioner for the services already rendered under the MSA and Rs. 22,92,37,426/- towards exit amount for termination/withdrawal from services from all the sites is also due.
9. The notice of winding up was dated 03.07.2015 and was served upon the respondent company on 05.07.2015. Despite the notices, the respondent company has failed or neglected to make payment of the undisputed, admitted amount due and payable to the petitioner. CO.PET. 06/2016
10. The petitioner and the respondent entered into an Interconnection Agreement dated 10.04.2009 envisaging interconnectivity of telecommunication networks in each of the service areas with each other. The petitioner provided the services and raised its invoices for the same to the respondent. The respondent company became unable to repay the petitioners an admitted debt of Rs. 2,68,70,170/- along with an interest at the rate of 11.5% per annum thereon compounded monthly from the respective due dates of the charges mentioned in the agreement dated 10.04.2009 till the date of actual realization.
11. The said amount was not paid by the respondent despite the statutory notice dated 25.02.2015.
ANALYSIS AND DECISION:
12. Having heard the learned counsel for the parties and on perusal of the record in each of the aforenoted petitions, it is evident that the respondent company is unable to pay its debt in the normal and ordinary course of its business, resulting in institution of the instant winding up petitions. It is pertinent to mention that neither a Provisional Liquidator (PL) nor an Official Liquidator (OL) has been appointed in the present petition.
13. With the enactment of Insolvency and Bankruptcy Code, 2016[1] and introduction of The Companies Act, 2013[2], particularly Section 434 of the said Act, the present petitions do not deserve to be continued before this Court as the same are still at an initial stage and no PL/OL has been appointed in these matters. Transfer of proceedings relating to winding up, pending before High Courts to the National Company Law Tribunal[3], has been provided for in Section 434 of the Act. The said provision reads as under:-
14. The Supreme Court in Action Ispat and Power Limited v. Shyam Metalics and Energy Limited[4] has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the NCLT. The relevant extract of the said decision reads as under:-
15. This Court in the case Citicorp International Limited v. Shiv- Vani Oil & Gas Exploration Services Limited[5] examined the legal position in respect of cases where the winding up petition is not at an advanced stage. It is the opinion of this Court, that, since hardly any proceedings have been undertaken towards winding up of the company, the instant petitions no longer deserve to be continued before this Court. The petitions are at a very nascent stage and no substantive orders have been passed towards winding up of the company.
16. Hence, the instant petitions are transferred to the NCLT. The parties shall appear before the NCLT on 10.01.2024. Interim orders passed by this Court in each of the petitions shall continue till the 2023:DHC:5206. same are revered or modified by the NCLT. It is left to the domain of the NCLT to consider the matters and pass appropriate orders in accordance with law.
17. The above noted company petitions are accordingly disposed of. The electronic record of the instant petitions be transmitted to the NCLT within a period of one week by the Registry. List before the NCLT on 10.01.2024.
DHARMESH SHARMA, J. DECEMBER 12, 2023