Full Text
HIGH COURT OF DELHI
Date of Decision: 5th October, 2023
NATIONAL BUILDINGS CONSTRUCATION CORPORATION LTD. .....
Petitioner
Through: Mr. Debarshi Bhadra, Advocate (M- 9899091969)
Through: Mr. Rajesh Ranjan and Mr. Adil Vasudeva, Advocates for R-1 (M-
8104624477)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been filed seeking winding up of the Respondent Company - M/s Narender Impex Ltd. now known as M/s Rajeshwari Reality Pvt. Ltd.
3. The case of the Petitioner is that the Respondent No.1 had placed a bid and had taken possession of a built-up office space and the ground and first floor, in the east side of commercial complex called NBCC Plaza, Pushp Vihar, Sector V, New Delhi, measuring 78,350 sq. ft. along with 81 car parking spaces in the basement and 37 pen car parking spaces on the ground floor. The maintenance charges were to be paid by the Respondent No.1 in terms of the tender document.
4. The case of the Petitioner is that the Respondent No.1 started defaulting in the said maintenance charges and a total amount of more than Rs.16 crores at the time when the petition was filed. The NBCC is also claiming electricity and ground rent charges.
5. The petition was filed some time in 2015 and since then, the pleadings have been completed in the matter. However, no further orders have been passed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 1956. The said provision reads as under:
6. The Supreme Court in Action Ispat and Power Limited v. Shyam Metalics and Energy Limited (2021) 2 SCC 641, has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Company Law Tribunal (NCLT). The relevant extract of the said decision is extracted as under:
22. 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 preadmission stage, given the beneficial result of the application of the Code, such winding up proceeding is compulsorily transferable to the NCLT to be resolved under the Code. Even post issue of notice and pre admission, the same result would ensue. However, post admission of a winding up petition and after the assets of the company sought to be wound up become in custodia legis and are taken over by the Company Liquidator, section 290 of the Companies Act, 2013 would indicate that the Company Liquidator may carry on the business of the company, so far as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court 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. This Court has also examined the legal position in respect of cases where the winding up petition is not at an advanced stage in judgement dated 25th July, 2023, Citicorp International Limited v. Shiv-Vani Oil & Gas Exploration Services Limited, 2023:DHC:5206.
8. In the opinion of this Court, since hardly any proceedings have been taken towards winding up of the company, the petition no longer deserves to be continued before this Court. The petition is itself at the very nascent stage and no substantive orders have been passed towards winding up of the company.
9. Accordingly, in view of this position and in view of the settled law, the petition is liable to be transferred to the NCLT. Parties to appear before the NCLT on 2nd November, 2023.
10. The electronic record of this petition be transmitted to the NCLT within a period of one week by the Registry.
PRATHIBA M. SINGH JUDGE OCTOBER 5, 2023 Rahul/am