IMPORTANT POINT
The main legal principle established in the judgment is that the discretion to transfer winding up proceedings to the tribunal should be based on the facts and circumstances of each case, considering the stage of the proceedings and the duty of the court to ensure payment to service providers and company paid staff.

JUDGMENT :

I. P. Mukerji, J.

The company Fortune Furnitech Pvt. Ltd. was ordered to be wound of by this court during the operation of the Companies Act, 1956. The procedure and proceedings for its liquidation started in that period.

2. Thereafter, the Companies Act, 2013 was enacted by Parliament repealing the 1956 Act and replacing it by a wholly new Act.

3. The Insolvency and Bankruptcy Code, 2016 was enacted on 28th May, 2016.

4. Section 434 of the Companies Act, 2013 was substituted by a new Section 434 with effect from 15th November, 2016. The proviso to Section 434(1)(c) provided that pending winding up proceedings, at a particular stage as may be prescribed by the Central government, were to be transferred to the tribunal.

5. The Central government prescribed that those winding up applications of which notice had not been served on the respondent would be transferred to the tribunal.

6. Another proviso was added with effect from 6th June, 2018 to the effect that in any proceedings relating to the winding up of companies pending before the court immediately before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 an application may be filed for transfer of such proceedings. The court on such application may transfer the proceedings to the tribunal. In that case the proceeding would be dealt with by the tribunal as an application for initiation of corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016.

7. The appeal (APO 33 of 2022) is preferred by Alok Kumar Ganguly an empanelled valuer with the official liquidator who had been engaged by letter to value the assets of the Company in liquidation. He is aggrieved by the impugned order of the learned Single Judge dated 20th January, 2022 transferring the winding up proceedings to the tribunal without payment of his dues as valuer.

8. An application (ACO 3 of 2022) is taken out in the appeal (APO 33 of 2022) by Aloke Kumar Ganguly. He wants modification of the division bench order of this court made on 17th May, 2022. It related to the claim of the valuer. The order had assessed the claim of the valuer at Rs.3,11,000/- and had directed Rs.87,000/- being 28% of the value to be deposited by ARCIL and Rs.72,000/- being 72% of the value by ASREC. By the said application, the applicant wants an additional amount of Rs.1,00,000/- to be added to the claim and to be shared by the said two secured creditors in the said percentage.

9. The appeal (APO 31 of 2022) is preferred by Shiva Shakti Security Services complaining of the judgment and order dated 20th January, 2022, passed by the learned company judge transferring the case to the Tribunal. The appellant’s grievance is that such transfer was made without ordering payment for the security service charges of the appellant of more than Rs.1,12,30,874/-. The appellant was engaged by the Official Liquidator with the sanction of the court to protect the assets of the company.

10. The application (ACO 7 of 2023) connected with the appeal (APO 31/2022) is filed by ASREC (India) Ltd., a secured creditor of the company in liquidation. They stated therein that the only property of the company in liquidation were parcels of land measuring 16.02 bighas, 17.045 bighas and 6.99 bighas aggregating to 40.46 bighas in Mouza – Dirghanga, District – Hooghly, West Bengal. The company had two secured creditors namely the applicant and ARCIL. Both of them had a combined claim of about Rs.110 crores from the company. It was also averred in that application that these two secured creditors had negotiated with a company Square Four Logistics Park Pvt. Ltd. of 238A, A.J.C. Bose Road, Kolkata – 700020 which had agreed to purchase the above property for Rs.18,13,26,547/-. If the said property was sold to this intending purchaser, these two secured creditors ASREC and ARCIL would divide up the net sale proceeds in the ratio of 72 : 28 respectively representing the value of their respective loans to the comp