1. Respondent-applicant PSL Limited, who is respondent in the company petitions, has filed this application seeking the order dated 19th July 2017 in company application (lodging) no. 333 of 2017 be vacated/recalled. By this non-speaking order, the Learned Company Judge was pleased to stay the proceedings filed by respondent-applicant under Section 10 of Insolvency and Bankruptcy Code, 2016 (“IBC”) before National Company Law Tribunal (NCLT), Ahmedabad for insolvency resolution.

The issue which arises for consideration in the present application is whether the Company Court has any jurisdiction to stay the proceedings filed by a Corporate Debtor before NCLT even though a previously instituted company petition by a creditor may have been admitted (and therefore does not get transferred to NCLT) but where a provisional liquidator has not been appointed.

2. On 10th March 2015 company petition no.434 of 2015 was filed by petitioner Jotun India Private Limited against respondent-applicant (org. respondent) under Sections 433 and 434 of the Companies Act, 1956, claiming an outstanding sum of Rs.7.25 Crores with interest in respect of unpaid invoices for goods supplied. For the purpose of this application, I am not considering the facts in other company petitions.

On 19th June 2015, respondent applicant made a reference to Board of Industrial and Financial Reconstruction (BIFR) under Sick Industrial Companies (Special Provisions) Act, 1985 (SICA).

3. On 1st December 2016 the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, (“Repeal Act”) was notified, and hence SICA came to be repealed.

Simultaneously, Insolvency and Bankruptcy Code, 2016, (“IBC”) was also brought into force. Section 4(b) of the Repeal Act (as amended by IBC) allowed a company whose reference was pending before BIFR as on the 1st December 2016 to file before NCLT an application under section 10 of IBC within a period of 180 days from the notification of the Repeal Act, i.e., on or before the 31st of May 2017 for commencement of the corporate insolvency resolution process and for an order of moratorium.

4. On 9th March 2017, order admitting the present company petition no.434 of 2015 was passed. Whilst admitting the company petition, the Learned Judge observed,

“… since all assets of the respondent company are secured assets in favour of the secured creditors and are under their control, I do not propose to appoint official liquidator at this stage. The petitioner will be at liberty to apply for appointment of the official liquidator at the latter stage if it is found that the assets of the respondent company are jeopardized.

5. On 29th May 2017 respondent-applicant filed an application before NCLT, Ahmedabad under section 10 of IBC, being C.P (IB) No. 37/10/NCLT/AHM/2017 (“IBC Application”), i.e., within the window of 180 days prescribed by the Repeal Act, for the commencement of the corporate insolvency resolution process.

In this application the fact that the above company petition had been filed has been expressly disclosed.

6. On 18th July 2017, IBC Application made by respondent applicant was taken up for hearing by NCLT, Ahmedabad, and the secured creditors to whom notice of IBC Application was given, were also heard. After hearing the parties, NCLT, Ahmedabad, reserved the matter for orders and directed the same to be listed on 20th July, 2017.

On the same day, petitioner herein, filed company application (lodging) no.333 of 2017 seeking the appointment of a Provisional Liquidator.

7. On 19th July 2017, petitioner herein, mentioned the company application (lodging) No.333 of 2017 before this Court for the appointment of a provisional liquidator.

After hearing the counsels, the Learned Judge was pleased to pass an order restraining the Hon’ble NCLT, Ahmedabad, from continuing with IBC Application and placed the company application (lodging) N