Naresh H. Patil, J.

1. Admit. Heard finally by consent of the parties.

2. This appeal is directed against the order dated 5/1/2018 passed by the learned Single Judge (Coram: K. R. Shriram, J.) in Company Application No. 572 of 2017 in Company Petition No. 434 of 2015.

3. The appellant is original respondent in Company Application No.572 of 2017 and original petitioner in Company Petition No.434 of 2015, which came to be filed on 10/3/2015 under Sections 433 and 434 of the Companies Act, 1956 (for short the Act of 1956). The respondent herein is original applicant in Company Application No.572 of 2017 and original respondent in Company Petition No. 434 of 2015.

4. The appellant claimed an outstanding amount of Rs.7.25 crores with interest in respect of unpaid invoices for the goods supplied by the appellant in favour of the respondent. The respondent – Corporate Debtor made a reference to Board of Industrial and Financial Reconstruction (for short BIFR). On 1/12/2016 the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (for short the Repeal Act, 2003) was notified and the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the SICA) came to be repealed. Simultaneously, the Insolvency and Bankruptcy Code, 2016 (for short the IBC, 2016) was brought into force on 28/5/2016. Under the provisions of Section 4(b) of the Repeal Act, 2003 (as amended by the IBC, 2016), a company, whose reference was pending before the BIFR as on 1/12/2016, was entitled to file an application under Section 10 of the IBC, 2016 within a period of 180 days from the notification of the Repeal Act, 2003 i.e. on or before 31/5/2017. Such an application could be filed before the National Company Law Tribunal (NCLT) under Section 10 of the IBC, 2016. The proceedings before the NCLT were to be commenced in respect of the corporate insolvency resolution process and for an order of moratorium.

5. On 9/3/2017, the Company Petition No. 434 of 2017 was admitted by the learned Company Judge. On 29/5/2017, the respondent – Corporate Debtor filed an application before the NCLT, Ahmedabad under Section 10 of the IBC, 2016 being C.P. (IB) No. 37/10/NCLT/AHM/2017 (IBC Application) within a period of 180 days as prescribed by the Repeal Act, 2003. In the said application, pendency of the Company Petition has been disclosed. On 18/7/2017, the IBC Application was taken up for hearing by the NCLT, Ahmedabad. The secured creditors, who were noticed, were also heard. After hearing the parties, the matter was reserved for orders by the NCLT. The matter was to be listed on 20/7/2017 as it was closed for orders. On 18/7/2017, the appellant-creditor filed Company Application (L) No. 333 of 2017 requesting for an appointment of a provisional liquidator. The learned Company Judge, by an order dated 19/7/2017 restrained NCLT, Ahmedabad from continuing with IBC Application. The Company Application was placed on 26/7/2017.

6. On 20/7/2017, Appeal (L) No.280 of 2017 was fled by the respondent-corporate debtor challenging the said order dated 19/7/2017. It is submitted that the Division Bench of this Court (Coram: Shantanu S. Kemkar & M.S. Sonak, JJ.) by an order dated 1/8/2017 clarified that the question of jurisdiction was kept open for determination and in that view of the matter, the respondent-corporate debtor withdrew the said appeal. The stay granted by the learned Single Judge is still continued due to which the NCLT, Ahmedabad could not pass further orders.

7. On 15/9/2017, Company Application No. 572 of 2017 came to be filed by the respondent – corporate debtor before the Company Judge seeking vacation of order dated 19/7/2017. By an order dated 5/1/2018, the learned Single Judge vacated the order dated 19/7/2017 by holding that there is no bar on the NCLT, Ahmedabad from proceeding with IBC Application of the respondent-corporate debtor. On 7/2/2018, present appeal came to be filed by the appellant challenging the order dated 5/1/2018.

8. Before