ABHIJEET PROJECTS LTD Vs. YOGESH KHANNA

JUDGEMENT

(1.) All the appeals involve common questions of law and fact and accordingly are heard analogously. The principal issue raised in this appeal by the appellants is:

(2.) It is submitted that the learned Single Judge on a complete misreading of the amended provision of the companies Act, 2013 and the decisions in Action Ispat and Power Pvt. Ltd. Vs. Shyam Metalics and Energy Ltd. reported in 2021(2) SCC 641 and A. Navinchandra Steels Private Limited vs. Srei Equipment Finance Limited and Ors., reported in AIR 2021 SC 1180 directed transfer of the Company petition after having recorded that there is no irreversible situation which has arisen warranting the court retaining the liquidation proceeding.

(3.) Mr. Banerjee submits that Sec. 434 does not contemplate automatic transfer of all winding up petitions which would be discernible from the fifth proviso to Sec. 434(1) (c). The said proviso was introduced by Act, 26 of 2018 with effect from 6/7/2018. The said proviso contemplates transfer of any proceeding to the National Company Tribunal on an application made by a party. The very fact that the company Court retains the jurisdiction to deal with winding up petitions that were pending when the companies Act, 2013 came into force is clear from the unamended Sec. 434 which was subsequently substituted by Act, 31 of 2016 and made applicable with effect from 15/11/2016. Both the provisions clearly retain the jurisdiction of the company court and it clearly spell out that the company court has no discretion to transfer the proceeding Suo Motu without there being an application filed by the petitioning creditor or a person interested in the said proceeding.