ASHIS KUMAR CHAKRABORTY,J. - (1.) The application, C.P. No. 613 of 2016 has been filed under section 433(e) of the Companies Act, 1956 (in short "the Act of 1956") by the petitioning creditor for winding up of Impex Ferotech Ltd. (hereinafter referred to as "the company") on the ground that the company is commercially insolvent. The winding up application is being contested by the company who has filed its affidavit-in-opposition. The petitioning creditor has also filed its affidavit-in-reply.
(2.) On August 01, 2018 when the winding up application was taken up for hearing and the learned Senior Counsel appearing for the petitioning creditor started his argument in the said application. At this juncture, the learned Senior Counsel appearing for the company submitted that the company has filed an application, C.A. No. 220 of 2018 praying for transfer of the winding up application before the National Company Law Tribunal, Kolkata Bench (hereinafter referred to as "NCLT"). The counsel for the petitioning creditor, however, submitted that since the hearing of the winding up application was fixed on that date he should be allowed to make the submissions on behalf of the petitioning creditor. Accordingly, the learned senior counsel for the petitioner made his arguments in the winding up application. Thereafter, when it was the turn of the counsel for the company to commence his argument in the winding up application it was contended that before conclusion of the hearing of the winding up application, the application filed by the company for transfer of the winding up application to NCLT should be decided first. Accordingly, the said application of the company, C.A. No. 220 of 2018 along with the winding up application were fixed for hearing on August 02, 2018.
(3.) On August 02, 2018 the said application, C.A. No. 220 of 2018 filed by the company (hereinafter referred to as "the said application") was first taken up for hearing. While placing the said application, learned Senior Counsel for the company referred to a communication dated July 25, 2018 issued by an advocate to the company enclosing therewith, a copy of an application filed by the Punjab National Bank (hereinafter referred to as "the said bank"), the secured creditor of the company filed, under section 7 of the Insolvency and Bankruptcy Code, 2016 (in short the "IBC, 2016"), against the company before the NCLT. It was further submitted that in exercise of power conferred by Article 123(1) of the Constitution of India, the President has passed Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 providing, inter alia, that in sub-section (1) section 434 of the Companies Act, 2013 (as substituted by paragraph 34 of the Schedule XI to the Code of 2016), a second Proviso shall be inserted in clause (c) to the effect that any party or parties to any proceeding relating to the winding up of the companies pending before any Court, immediately before the commencement of the said ordinance may file an application for transfer of such proceeding and the Court may by order transfer such proceedings to the NCLT. It was argued for the company that in terms of the second Proviso incorporated in clause (c) of sub-section (1) of section 434 of the Companies Act, 2013 such transferred winding up proceeding shall be dealt with by NCLT as an application for initiation of corporate insolvency resolution process under IBC, 2016. The company emphasised that in view of the incorporation of the second Proviso to clause (c) of sub-section (1) of Section 434 of the Act of 2013 with filing of the application by the said bank, under Section 7 of the IBC Code of 2016 before the NCLT, this Court should allow the present application and transfer the winding up application filed by the petitioning creditor against it to NCLT. It was argued for the company that considering the object of the enactment of the IBC, 2016 for adjudication of the dues of both, a financial creditor as well as the operational creditor of the company, this Court should exercise its wide discretion conferred by the said second Proviso to clause (c) of sub-section (1) of Section 434 of the Act of 2013 and transfer the winding up application filed by the petitioning creditor to NCLT.;