Full Text
HIGH COURT OF DELHI
Date of Decision: 10.07.2025
M/S TRIGO IMAGEMENT SLOVAKIA .....Petitioner
Through: Mr. Viraat Tripathi, Adv.
Through: Mr. Pradeep Aggarwal, Mr. Aman Kumar, Advs.
JUDGMENT
1. The present Petition has been filed under Section 433(1)(e) of the Companies Act, 1956 for winding up of the Respondent Company.
2. Learned Counsel for the Respondent submits that in terms of the judgment of the Supreme Court in Action Ispat and Power Pvt. Ltd. vs Shyam Metalics and Energy Limited[1] and Notification G.S.R. 1119(E) dated 07.12.2016 issued by the Ministry of Corporate Affairs, the matter is to be transferred to the National Company Law Tribunal for adjudication.
3. Learned Counsel for the Petitioner concurs with this contention.
4. A review of the record shows that the winding up petition although pending for some time before this Court is at a preliminary stage. The petition has not been admitted and thus the Professional Liquidator or Official Liquidator has not been appointed. In fact, no substantive orders have been passed in this petition for several years.
5. The Supreme Court in Action Ispat case has held that where winding up petition pending before the High Court has not progressed to an advanced stage, it ought to be transferred to the National Company Law Tribunal. The Supreme Court has held that even post-admission of a winding-up Petition, and after the appointment of a liquidator, the discretion is vested in the Company Court to transfer such Petition to the NCLT. The relevant extract of the Action Ispat case is set out below:
proceeding where the petition has not been served in terms of Rule 26 of the Companies (Court) Rules, 1959 at a pre-admission stage, given the beneficial result of the application of the Code, such winding-up proceeding is compulsorily transferable to 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 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.” [Emphasis supplied]
6. Accordingly, the Petition is transferred to the National Company Law Tribunal. The Petitioner is at liberty to take appropriate steps in accordance with law for further proceedings before the National Company Law Tribunal.
7. The Petition is disposed of in the afregoing terms.
TARA VITASTA GANJU, J JULY 10, 2025/jn/r