The main legal point established in the judgment is the transfer of winding up petitions to the National Company Law Tribunal in accordance with the provisions of the Companies Act, 2013 and the observations of the Apex Court.

ORDER :

1. Heard learned advocate Ms. Tanisha Agarwal for M/s. Trivedi and Gupta for the petitioner.

2. This petition is filed for winding up of the respondent-Company as it has failed to pay the debt of the petitioner under sections 433, 434 and 439 of the Companies Act, 1956.

3. This Court (Coram: Hon’ble Mr. Justice R.M. Chhaya) issued notice on 26th July, 2013. Thereafter this Court (Coram: Hon’ble Mr. Justice G.R. Udhwani, As His Lordship was then) vide a detailed order dated 14th March, 2019 admitted the petition and ordered provisional appointment of the Official Liquidator. It was directed that all the debts liabilities and assets of the company shall vest in the provisional Official Liquidator who shall do the needful by issuing public advertisement of the admission of the company petition.

4. It appears that pursuant to order dated 14th March, 2019 the Official Liquidator has filed Official Liquidator’s Report No. 9/2020 informing the Court about the advertisement published in newspaper and seeking prayer to make payment for such advertisement. Further, it is stated in the report that the Official Liquidator could not take possession of the registered office situated at 14, Radhe Kishan Bungalows, Near Boadakdev Fire Station, Bodakdev, Ahmedabad since HDFC bank had already sold the assets to one Mrs. (Dr.) Ashalata Kulshrestha. However, the Official Liquidator had taken possession of the factory premises situated at Plot No. 1507-Kerala Industrial Estate, Mouje Kerala, Bavla, District Ahmedabad after preparation of inventory by Government Approved Valuer. In the report, prayer was made to permit the Official Liquidator to invite claims of secured creditors of the company by issuing advertisement in newspaper and to permit the Official Liquidator to pay the bill of the advertising agency from the Common Pool Account available with the Official Liquidator. Further prayers were made in the report to permit the Official Liquidator to form Sale Committee for disposal of the assets of the company, to pay the professional bill towards inventory-cum-valuation and to pay the monthly security bill of the security force employed by the Official Liquidator.

5. It appears that thereafter, the matter has been adjourned from time to time at the request of the parties and matter has never been heard on merits and no further progress has been made in the matter.

6. Learned advocate for the petitioner submitted that sufficient efforts are made to resolve the disputes between the petitioner and the respondent-Company but the same have failed. It was further submitted that in view of the decision of the Apex Court in case of Action Ispat and Power Pvt. Ltd. vs. Shyam Metalics and Energy Ltd. rendered in Civil Appeal No. 404 of 2020 on 15.12.2020, the proceedings of the company petition are required to be transferred to the National Company Law Tribunal [‘NCLT’ for short].

7. Having heard learned advocate for the petitioner, it appears that after the order of admission, advertisement of the petition and appointment of provisional liquidator, no further orders are passed by the Court with regard to order of winding up of the company. In such circumstances and in view of the following observations of the Apex Court in case of Action Ispat and Power Pvt. Ltd. vs. Shyam Metalics and Energy Ltd. (supra), this petition is required to be transferred to the NCLT, Ahmedabad:

“22. Given the aforesaid scheme of winding up under Chapter XX of the Companies Act, 2013, it is clear that several stages are contemplated, with the Tribunal retaining the power to control the proceedings in a winding up petition even after it is admitted. Thus, in a winding up proceeding where the petition has not been served in terms of Rule 26 of the Companies (Court) Rules, 1959 at a preadmission stage, given the beneficial result of the application of the Code, such winding up proceeding is compulsorily transferable to the NCLT to be resolved under the Code. Even post issue of