Satyen Vaidya, Judge

By way of instant application under Section 434(1) (c) of the Companies Act, 2013 (for short “2013 Act”), a prayer has been made to transfer the Company Petition No. 7 of 2016 to National Company Law Tribunal ( for short “NCLT”).

2. The application has been filed by respondent- applicant (M/s Inox Wind Ltd.). fIt has been submitted that except for the notice having been served upon the respondent-applicant, no effective proceedings towards the winding-up of respondent-Company have been taken and for such reason, keeping in view the amended provisions of 2013 Act, the Company Petition No. 7 of 2016, is liable to be transferred to NCLT.

3. Non-applicant/petitioner (Elecon Engineering Company Limited ) has opposed the application. It has been submitted that on 19.04.2016, this Court had passed an interim direction against applicant/respondent not to alienate, encumber, transfer or create third party interest in the assets of applicant/respondent, especially the unit in existence over Plot No. 1, Khasra Nos. 264 to 267, Industrial Area, Village Basal, District Una, H.P. alongwith plant and machinery installed therein. It has also been submitted that during the pendency of Company Petition No. 7 of 2016, the parties have made efforts for amicable settlement and in result a sum of Rs. 1.40 Crores has been paid to the non- applicant/petitioner by applicant-respondent as part payment towards its due. It is ffurther contended that the application filed by applicant/respondent, at the final stage of Company Petition, is just to avoid finalization of dispute by this Court and also to drag the issue of payment of admitted liability further.

5. I have heard learned counsel for the parties and have also gone through the record of the case carefully.

6. Mr. Sunil Mohan Goel, Advocate, learned counsel for the applicant/respondent has contended that the proceedings in Company Petition No. 7 of 2016 are still at infant stage; except for service of notice upon applicant/respondent, nothing substantial has been done in the direction of winding-up of respondent- Company. He has referred to fifth proviso to Section 434 (1) ( c) of 2013 Act, to contend that this Court has jurisdiction to transfer the Company Petition to NCLT even at this stage when notices have already been served upon the respondent-Company. He has also placed reliance upon a judgment passed by a three judge bench of Hon’ble Supreme Court in Action Ispat and Power Private Limited Vs. Sfhyam Metalics and Energy Limited, (2021) 2 SCC 641 .

7. On the other hand, Mr. Subhash Sharma, learned counsel for the applicant/respondent, while opposing the grant of prayer, has submitted that the Company Petition cannot be transferred in view of clause(ii) of third proviso to Section 434 (1) ( c) of 2013 Act. He further contended that the dictum in Action Ispat case (supra) was not applicable in the facts of the instant case where firstly, the notices have already been issued upon the respondent and secondly, there were no parallel proceedings before NCLT creating possibility of multiple decisions on the same issue.

8. In Action Ispat (supra), Hon’ble Supreme Court has held as under:-

“14. What becomes clear upon a reading of the three judgments of this Court is the following:

(14.1) So far as transfer of winding up proceedings is concerned, the Code began tentatively by leaving proceedings relating to winding up of companies to be transferred to NCLT at a stage as may be prescribed by the Central Government.

(14.2) This was done by the Transfer Rules, 2016 (supra) which came into force with effect from 15.12.2016. Rules 5 and 6 referored to three types of proceedings. Only those proceedings which are at the stage of pre-service of notice of the winding up petition stand compulsorily transferred to the NCLT.

(14.3) The result therefore was that post notice and pre admission of winding up petitions, parallel proceedings would continue under both statutes, leading to a most unsatisfactory