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IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
Uma Sharma - Appellant
Versus
Octagon Builders & Promoters & Anr. - Respondents
CO.PET. 147 of 2014 & CO. Appls. 858 of 2018, 301 of 2023, OLR 211 of 2019, OLR 293 of 2019
Decided On : 21-09-2023
Companies Act - Winding Up - Section 433(e), Section 439 - 434, 434(1)(a), 434(1)(b), 434(1)(c), 434(1)(i), 434(1)(ii), 434(1)(iii) - The judgment discusses the winding up of the respondent company under Section 433(e) and Section 439 of the Companies Act, 1956. It also addresses the transfer of pending proceedings to the National Company Law Tribunal (NCLT) as per Section 434 and the Ministry of Corporate Affairs notification dated 7th December, 2016. The court refers to the decision in Citicorp International Limited v. Shiv-Vani Oil & Gas Exploration Services Limited and emphasizes the objective of the Insolvency and Bankruptcy Code, 2016 to encourage the revival of the corporate debtor before resorting to liquidation. The judgment concludes by transferring the petition to the NCLT and recalling the appointment of the Liquidator.
Fact of the Case:
The petition seeks winding up of the respondent company 'M/s Octagon Builders & Promoters' under Section 433(e) and Section 439 of the Companies Act, 1956. The Official Liquidator was appointed, and subsequent petitions were disposed of, permitting claimants to file their claims before the Official Liquidator.
Finding of the Court:
The court found that the winding up proceedings were at a nascent stage and decided to transfer the petition to the NCLT, emphasizing the objective of the Insolvency and Bankruptcy Code, 2016 to encourage the revival of the corporate debtor before resorting to liquidation.
Issues: The primary issue was the transfer of winding up petitions to the NCLT as per the Companies Act, 1956 and the Ministry of Corporate Affairs notification dated 7th December, 2016.
Ratio Decidendi: The court's decision was influenced by the objective of the Insolvency and Bankruptcy Code, 2016 to encourage the revival of the corporate debtor before resorting to liquidation, as well as the provisions of the Companies Act, 1956 and the Ministry of Corporate Affairs notification dated 7th December, 2016.
Final Decision: The petition was transferred to the NCLT, and the appointment of the Liquidator was recalled. The claimant was permitted to pursue their claim before the NCLT, and any transactions carried out post the filing of the petitions would be liable to be dealt with in accordance with the law by the NCLT.
JUDGMENT
Prathiba M. Singh, J. (Oral) - This hearing has been done through hybrid mode.
2. The present petition has been filed under Section 433(e) and Section 439 of the Companies Act, 1956 seeking winding up of the Respondent Company. The company in liquidation is "M/s Octagon Builders & Promoters". The following nine petitions were filed before this Court against the company in liquidation seeking winding up on the ground that the amounts which they had paid had not been returned to them. The details of the petitions are:
| S.No. | Petition No. | Title |
| 1 | CO.PET.154/2014 | RAJIV MATHUR v. OCTAGON BUILDERS & PROMOTERS |
| 2 | CO.PET.156/2014 | SUDHIR ANAND v. OCTAGON BUILDERS & PROMOTERS |
| 3 | CO.PET.157/2014 | MUKESH KUMAR v. OCTAGON BUILDERS & PROMOTERS |
| 4 | CO.PET.168/2014 | DEEPAK MITTAL v. OCTAGON BUILDERS & PROMOTERS & ANR. |
| 5 | CO.PET.169/2014 | C.P. SHARMA v. OCTAGON BUILDERS & PROMOTERS & ANR. |
| 6 | CO.PET. 170/2014 | AJAY KAPUR v. OCTAGON BUILDERS & PROMOTERS & ANR. |
| 7 | CO.PET. 212/2014 | MRS. SIKHA KAUSHAL v. OCTAGON BUILDERS & PROMOTERS |
| 8 | CO.PET. 290/2014 | ALANKAR PATHAK & ANR. v. OCTAGON BUILDERS & PROMOTERS & ANR. |
| 9 | CO.PET. 147/2014 | UMA SHARMA v. OCTAGON BUILDERS & PROMOTERS & ANR. |
3. This Court had, vide order dated 27th August, 2018 appointed the liquidator in CO.PET.147/2014 in the following terms:
"I, accordingly, admit the present petition. The Official Liquidator attached to this Court is appointed as the Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent company forthwith. The citations be published in the Delhi editions of the newspapers 'Statesman' (English) and 'Veer Arjun' (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication of Rs.75,000/- will be paid to the OL collectively by the petitioners in Co. Petition Nos.154/2014, 156/2014, 157/2014, 168/2014, 16912014,170/2014,212/2014 & 290/2014.
Petitioners shall deposit a sum of Rs.75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company."
4. On the said date, the following order was passed in the remaining petitions:
"These petitions are filed seeking winding up of the respondent company. This court has today in CP 147/2014 admitted the petition and appointed the OL as the Provisional Liquidator. Accordingly, the present petitions have become infructuous and stand disposed of.
Liberty is granted to the petitioners to file their claim before the OL within six weeks in the prescribed manner as per law.
Petitions stand disposed of."
5. Pursuant to the said order dated 27th August, 2018, the amount of Rs.75,000/- is stated to be deposited by the Petitioners and the citations were published by the OL. However, as per Ms. Sindhwani, counsel for the OL, no steps have been taken thereafter.
6. As per OLR Nos. 211/2019 and 293/2019 the stand of the OL is that the directors have not been cooperating and that in effect, even the statement of affairs is not fully recorded. Thus, the OL has even sought action against Mr. Kuldip Nandrajog, the ex-director of the Respondent.
7. In the meantime, a petition has come to be filed before the NCLT, Allahabad Bench, Prayagraj by one M/s Mind Makers Communication Pvt. Ltd. against the company which is under liquidation before this Court. The last order dated 13th September, 2023 pa
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