IMPORTANT POINT
Transfer of winding up proceedings to NCLT under Section 434 of the Companies Act, 2013

JUDGMENT

Dharmesh Sharma, J. (Oral)

1. This hearing is being conducted through hybrid mode.

2. The instant company petition has been instituted under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956, seeking winding up of the respondent company - DSC Limited, predicated on the non-payment of an outstanding amount of Rs. 35,82,552.90/- along with interest payable @ 24% per annum.

3. Briefly stated, pursuant to an Offer Letter dated 05.08.2010, the petitioner herein was appointed by the respondent company to the designation of 'President P&E' vide Appointment Letter dated 15.09.2010. It is stated that the petitioner was appointed at a salary of Rs. 7,50,000/- per month and was further entitled to a sum of Rs. 20,00,000/- per annum, said amount being in the nature of a Performance Linked Incentive (PLI). Subsequently, the respondent company delayed/stopped the payment of monthly salary and incentives to the petitioner from 01.01.2012 and it is stated that the petitioner was ill-treated by the respondent company and its management. Owing to the same, the petitioner was compelled to tender his resignation vide letter dated 09.04.2012, which was accepted by the respondent company on 21.04.2012.

4. The total outstanding amount due to the petitioner is stated to be on account of various heads, including non-payment of salary for the period 01.01.12 to 30.04.2012 amounting to Rs. 25,08,907.90/-; as also an amount of Rs. 10,00,000/- payable as Performance Linked Incentive; amount not paid on account of paid leave to the tune of Rs. 5,60,241.70/-; and unpaid conveyance allowance amounting to Rs. 61,800/-; along with interest @ 18% per annum amounting to Rs. 4,51,603.30/-. The sum thereon after adjusting an amount of Rs. 10,00,000/- received by the petitioner as advance is Rs. 25,82,552.90/, as stated to be payable and due.

5. Since the respondent company neglected to make good the payment of said outstanding amount, the petitioner sent a legal notice dated 09.02.2013 calling upon the respondent to make the payment of the outstanding amount. Despite the legal notice, the amount remained unpaid and consequently, the petitioner was constrained to serve a statutory legal notice dated 21.07.2015 upon the respondent company, as provided for under Sections 433 (e) and 434 of the Companies Act, 1956. The notice dated 21.07.2015 was replied to by the respondent company stating that the petitioner company has failed to provide any documentary evidence to establish his claim. However, in this regard it is stated on behalf of the petitioner that since the respondent company did not specifically deny the claim of the petitioner, the amount due to the petitioner stood admitted by implication.

6. It appears that the respondent company has neglected/failed to repay its debt in the normal and ordinary course of business, hence, the present petition has been filed. However, from a perusal of the record, it is but evident that the present petition is a complete non- starter. No substantive orders have been passed so much so that not even a Provisional Liquidator has been appointed to the respondent company.

7. It is necessary to note that during the pendency of these proceedings, the Insolvency and Bankruptcy Code, 2016 as well as the Companies Act, 2013, have since been enacted. In view of this, it is the opinion of the court that the present petition does not deserve to continue before this Court, and it would be appropriate for the same to be transferred to the National Company Law Tribunal [NCLT]. In this regard, it is relevant to consider Section 434 of the Companies Act, 2013 which provides for the transfer of proceedings relating to winding up, pending before High Courts, to the NCLT, and reads as under:

"434. Transfer of certain pending proceedings (1) On such date as may be notified by the Central Government in this behalf,-

(a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this s