IMPORTANT POINT
The main legal point established in the judgment is that winding up petitions at a nascent stage should be transferred to the National Company Law Tribunal (NCLT) in accordance with Section 434 of the Companies Act, 2013 and relevant case law.

JUDGMENT

1. This Company Petition has been preferred under Sections 433(e), 434 and 439 of the Companies Act, 1956 seeking winding up of the respondent company - M/s Space Turtle Private Limited, on the ground of non-payment of outstanding dues to the petitioner company amounting to Rs. 1,46,97,609/- arising out of purchase orders for the period 01.09.2014 to 31.03.2015, along with due interest.

BRIEF FACTS

2. Briefly stated, the petitioner company is engaged in the business of outdoor advertising and has the license for display and management of advertisements at several places in Delhi including the DND Flyover. On the other hand, the respondent company is in the business of Real Estate and allied activities, including the development, marketing and sale of residential/commercial properties in the Delhi- NCR region.

3. It is the case of the petitioner that the respondent company engaged the petitioner company to place and display certain corporate advertisements of its company at various desired places in Delhi, pursuant to which 7 purchase orders were placed by the respondent company, for the period 1.09.2014 to 31.03.2015.

4. Thereafter, respective invoices against the purchase orders for the relevant period were raised by the petitioner company, and it is stated that the same were duly received by the respondent company. Further, per the agreed upon terms and conditions, the outstanding amounts were to be paid by the respondent company within 60 days from the date of receipt of invoices and in case of delay the respondent company was liable to pay interest at 18% as well.

5. As stated by the petitioner, the respondent company defaulted in making payments on various occasions and the cheques provided were also dishonored for several reasons. Vide email dated 15.06.2015, the petitioner company brought to the notice of the respondent company that an amount of Rs. 1,46,97,609/- (excluding interest) was outstanding. In response to the same, the respondent company acknowledged and admitted their debt and liability towards the petitioner company to the tune of Rs. 97,45,032/- and further stated that the balance amount of Rs. 41,14,763/- will be booked in the books of accounts of the respondent company upon the receipt of respective invoices. Such invoices were sent to the respondent company soon after, and the same were duly received.

6. The petitioner company served a legal notice dated 17.07.2015 to the respondent through its counsel, calling upon them to pay a sum of Rs. 1,46,97,609/- along with 18% interest p.a. thereby totaling to the amount of Rs. 1,65,74,026/-. It is stated that the respondent company has neither repaid the sum nor responded to the legal notice, hence the petitioner chose to move the present winding up petition, on the basis that the respondent company is unable to pay its legally recoverable debt/liability and has mala fide intention to misappropriate the amount, and is therefore liable to be wound up.

ANALYSIS & DECISION

7. Evidently, the Respondent Company is unable to pay its debt in the normal and ordinary course of its business, hence, the present petition has been filed. However, from a perusal of the record, it appears that neither a Provisional Liquidator nor an Official Liquidator has been appointed in the present petition and as such, this winding up petition has been a non-starter.

8. Given that the Insolvency and Bankruptcy Code, 2016[IBC] has since been enacted, along with the introduction of Companies Act, 2013[The Act] and in particular Section 434 of the said Act, the present petition does not deserve to continue before this Court as it is still at an initial stage and no Provisional/Official Liquidator has been appointed in this matter. Section 434 of the Companies Act, 2013 provides for the transfer of proceedings relating to winding up, pending before High Courts, to the National Company Law Tribunal[NCLT], and reads as under:

"434. Transfer of certain pending proceedings

(1) On such date as may