Anil Kumar Murarka Vs Official Liquidator And Anr (Calcutta High Court)
Winding-Up Case Transfer Upheld Because No Irreversible Stage Had Been Reached; Company Court Can Transfer Winding-Up Proceedings Without Formal Transfer Application; NCLT Transfer Valid Because Section 434 Does Not Mandate Transfer Application; Appeal Against NCLT Transfer Rejected Because Liquidation Had Not Become Irreversible.
The appeal was filed by a creditor of a company in liquidation against an order dated July 28, 2023, by which a learned Single Judge transferred a winding-up petition and a connected application to the National Company Law Tribunal (NCLT), Kolkata under Section 434 of the Companies Act, 2013.
The appellant contended that the impugned order did not disclose that any party had filed an application seeking transfer of the winding-up proceedings. It was argued that the last proviso to Section 434(1)(c) of the Companies Act, 2013 makes an application for transfer mandatory. Reliance was placed on S. Sundaram Pillai & Ors. vs. V.R. Pattabiraman & Ors. to contend that the proviso regulates the operation of the statutory provision. The appellant also relied on Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 and submitted that the Company Court could not transfer a winding-up petition suo motu. Further reliance was placed on Abhijeet Projects Ltd. vs. Jogesh Khanna and Kaledonia Jute and Fibres Pvt. Ltd. vs. Axis Nirman & Industries Ltd., arguing that a creditor could seek transfer by application and that, to the appellant’s knowledge, no proceedings under the Insolvency and Bankruptcy Code, 2016 were pending against the company. The appellant stated that its claim against the company was approximately ₹5.69 lakh for services rendered.
