A winding-up petition can be transferred to the NCLT without a formal application if no irreversible steps have been taken in the liquidation process.

JUDGMENT :

AMIT MAHAJAN, J.

1. The present Company Petition No. 193/2016 has been filed under Sections 433(e)/434(1)(a)/439 of the Companies Act, 1956, (‘Companies Act’) seeking the winding up of the Respondent Company - Pinnacle Air Pvt. Ltd., on the grounds of its inability to pay its debts to the petitioner company - COWI India Pvt Ltd.

2. The matter has been pending adjudication before this Court, and the respondent has now sought a transfer of the matter to the National Company Law Tribunal (‘NCLT’), Delhi Bench.

3. In view of the same, by order dated 31.07.2024, this court called upon the petitioner to make submissions as to why the present matter should not be transferred to the NCLT.

4. The learned counsel for the petitioner opposes the transfer to the NCLT and places reliance on the judgment of the Calcutta High Court in Abhijeet Projects Ltd. v. Yogesh Khanna, 2023 SCC OnLine Cal 2357, where it was held that a petition cannot be transferred to the NCLT suo motu unless an application is formally made. He argues that since no such application is filed in this case, the matter should not be transferred.

5. The learned counsel for the respondent, on the other hand, submits that there is no bar on this Court transferring the matter to the NCLT, even without a formal application.

6. He submits that the present petition ought to be transferred to NCLT in view of Section 434(c) of the Companies Act. He submits that the present case is squarely covered by the decision in the case of Gurbakhsh Singh BA, Builders P. Ltd. v. Fortis Hospital Ltd., 2024 SCC OnLine Del 3480, wherein a Coordinate Bench of this Court clarified that even post- admission, a winding-up petition can be transferred if no irreversible steps have been taken.

7. He states that as far as the requirement of moving a formal application for transfer of proceedings is concerned, the relevant provision of the statute itself uses the word ‘may’, therefore, there arises no need for an application to be moved for the same.

8. He submits that no Official Liquidator has been appointed, no orders have been passed for the sale of assets, and no irreversible steps have been undertaken in the present case. He argues that this is precisely the kind of matter that should be transferred to the NCLT under Section 434 of the Companies Act, 2013, which mandates such transfers.

9. The short question that falls for consideration before this Court is whether a winding-up petition filed under the Companies Act, 1956, at a stage where no irreversible steps have been taken towards liquidation, can and should be transferred to the NCLT at the instance of the respondent.

10. The learned counsel for the petitioner resists the transfer, arguing that a formal application is necessary for such a transfer, relying on the decision in Abhijeet Projects Ltd. v. Yogesh Khanna (supra). The learned counsel for the respondent, on the other hand, contends that this Court has the inherent jurisdiction to transfer the matter, even suo motu, if warranted in the interests of justice, as per the ruling in Gurbakhsh Singh BA, Builders P. Ltd. v. Fortis Hospital Ltd. : 2024 SCC OnLine Del 3480

11. Upon an examination of the record, it is evident that the present winding-up petition is a non-starter. The proceedings remain at a preliminary stage, with neither a provisional liquidator nor an official liquidator having been appointed to assume control over the assets and affairs of the respondent company. Consequently, no substantive orders have been passed in this petition for seven years.

12. At the outset, it would be apposite to reproduce Section 434 of the Companies Act, 2013 which provides for the transfer of proceedings relating to winding up, pending before the High Courts, to the NCLT. The same 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 Admi