Winding-up proceedings must be transferred to the National Company Law Tribunal unless irreversible actions have occurred, emphasizing the urgency and procedural mandates of corporate insolvency law.

JUDGMENT :

DEBANGSU BASAK, J.

1. Appeal is at the behest of a company who claims to render security guard services for the protection of the assets of a company (in liquidation).

2. Appeal is directed against an order dated January 20, 2022 passed in IA CA /15/2021 in CP/1127/2014.

3. Learned advocate appearing for the appellant submits that, since the dues of the appellant are yet to be paid by the secured creditor, winding up proceedings being CP/1127/2014 should not be transferred to the National Company Law Tribunal. He submits that, the employees of the appellant are still continuing to guard the assets of the company (in liquidation). He points out that, the appellant was engaged by the official liquidator by a letter dated August 31, 2015. From time to time, appellant raised bills on the official liquidator for rendering services. A portion of such bills were paid. As on date, a portion still remains unpaid. Till such time the entire payment is made, the winding up proceedings should not be transferred.

4. Learned advocate appearing for the appellant relies upon an unreported decision of the Co-ordinate Bench dated December 7, 2023 rendered in APO/30/2022 with CP/77/2012 (Fortune Furnitech Private Limited & Tapas Chakrabarty & Ors. -Vs- Asset Reconstruction Company (India) Ltd. And Anr.) and contends that, in the facts and circumstances of the present case, the winding up petition should not be transferred to the National Company Law Tribunal. He submits that the impugned order be set aside.

5. Learned advocate appearing for the appellant draws the attention of this Court to the order admitting the appeal dated March 25, 2022 passed by the Co-ordinate Bench. He submits that, a jurisdictional issue and substantial point of law is raised in the present appeal as was noted by the Co-ordinate Bench while admitting the appeal.

6. Learned advocate appearing for the appellant submits that, since the winding up proceedings are yet to be concluded and that, since the appellant is required to continue with guarding the assets of the company (in liquidation) and since the bills of the appellant continue to remain unpaid, transferring the proceedings to the National Company Law Tribunal will be prejudicial to the appellant. If transfer is made, the appellant will be left without any remedy.

7. The secured creditor is represented. Learned advocate appearing for the secured creditor relies upon (2021) 2 Supreme Court Cases 641 ( Action Ispat And Power Pvt. Ltd. -Vs- Shyam Metalics And Energy Ltd. ) and contends that, in terms of the ratio laid down therein, the winding up petition should be transferred.

8. None appears for the official liquidator.

9. A winding-up petition in respect of M. S. Glass Industries Limited now in liquidation was presented being CP/1127/2014 before the High Court. Such winding up petition was admitted by the Court. An order of winding up was passed in respect of such company now in liquidation on August 5, 2015.

10. Official liquidator took possession of the assets of the company (in liquidation). The official liquidator by a letter dated August 31, 2015 appointed the appellant as an agency to provide security guards for protection of the assets of the company (in liquidation).

11. The order of winding up was passed under the provisions of the Companies Act, 1956. The Act of 1956 was repealed by the Companies Act, 2013. Se