JUDGMENT :

Soumen Sen, J.

1. All the appeals involve common questions of law and fact and accordingly are heard analogously.

2. The principal issue raised in this appeal by the appellants is:

3. Whether the company court can Suo Motu transfer a proceeding relating to winding up to NCLT or can such transfer only be made pursuant to an application by one of the parties?

4. Mr. Ratnanko Banerjee the learned Senior Advocate appearing on behalf of the appellants/petitioners in M/s. Abhijeet Projects Limited, (in Liquidation) and M/s Corporate Ispat Alloys Limited (in Liquidation) has assailed the judgment on the ground that having regard to the clear mandate of Section 434(1)(c) last proviso of the Companies Act, 2013 read with Rules 5 and 6 of companies (Transfer of Pending Proceedings) Rules, 2016, the direction to transfer the company petition to the National Company Law Tribunal Kolkata is without jurisdiction.

5. It is submitted that the learned Single Judge on a complete misreading of the amended provision of the companies Act, 2013 and the decisions in Action Ispat and Power Pvt. Ltd. Vs. Shyam Metalics and Energy Ltd. reported in 2021(2) SCC 641 and A. Navinchandra Steels Private Limited vs. Srei Equipment Finance Limited & Ors., reported in AIR 2021 SC 1180 directed transfer of the Company petition after having recorded that there is no irreversible situation which has arisen warranting the court retaining the liquidation proceeding.

6. Mr. Banerjee submits that Section 434 does not contemplate automatic transfer of all winding up petitions which would be discernible from the fifth proviso to Section 434(1) (c). The said proviso was introduced by Act, 26 of 2018 with effect from 6th July, 2018. The said proviso contemplates transfer of any proceeding to the National Company Tribunal on an application made by a party. The very fact that the company Court retains the jurisdiction to deal with winding up petitions that were pending when the companies Act, 2013 came into force is clear from the unamended Section 434 which was subsequently substituted by Act, 31 of 2016 and made applicable with effect from 15th November, 2016. Both the provisions clearly retain the jurisdiction of the company court and it clearly spell out that the company court has no discretion to transfer the proceeding Suo Motu without there being an application filed by the petitioning creditor or a person interested in the said proceeding.

7. It is submitted that the reliance on the aforesaid judgments of the Hon’ble Supreme Court was erroneous as in both the matters, applications were filed and parallel proceedings were pending.

8. It is submitted that the first proviso to Section 434(1)(c) makes a reference to the stages of the winding up proceeding appropriate for transfer as may be prescribed by the Central Government for the purpose of determination of transfer of winding up proceeding to NCLT. The said proviso read with the last proviso makes it clear that there is no absolute ouster of jurisdiction.

9. It is submitted that the Act does not contemplate complete ouster of jurisdiction of the company court or makes the official liquidator functus officio.

10. It is submitted that the learned Single Judge was possibly influenced by the use of the expression “irreversible” in Action Ispat (supra) and referred to in A. Navinchandra Steels Private Limited (supra). The ratio of the said decisions have been applied without proper appreciation of the facts and without considering the stages of the pending proceedings before the High Court.

11. Mr. Banerjee has referred to Section 31 of the Recovery of Debts and Tenancy Act, 1993 and Section 15 of the Commercial Courts Act, 2015 to show that the said Sections have completely ousted the jurisdiction of the Civil Curt in clear terms unlike Section 434 of the Companies Act.

12. Mr. Moloy Kumar Sil the learned Counsel representing UCO Bank, a secured creditors of M/s Corporate Ispat Alloys Ltd. (in liquidation), has submitted