ASHIS KUMAR CHAKRABORTY,J. - (1.) In this application the applicant, State Bank of India (hereinafter referred to as the "applicant bank") has prayed for, recalling of the order dated June 07, 2018 passed by this Court in C.A. No. 51 of 2018 with C.P. No. 822 of 2014. By the said order, this Court directed winding up of the company, Jai Balaji Industries Ltd., [hereinafter referred to as the "company (presently in liquidation)"] and directed the Official Liquidator to forthwith take possession of all the assets and properties of the company (presently in liquidation) lying at its registered office and the factories, together with its business and affairs.
(2.) The brief facts leading up to the filing of the present application are that the petitioning creditor, Lakhotia Transport Company Pvt. Ltd. filed the application, C.P. No. 822 of 2014, before this Court claiming winding up of the company (presently in liquidation)" for non-payment of its dues of Rs. 4,69,46,461/- on account of transportation charges of the goods of the company (presently in liquidation) from its factories to various places. The company (presently in liquidation) contested the winding up application, C.P. No. 822 of 2014. By an order dated August 17, 2015 a learned Single Judge of this Court admitted the said winding up application for the principal sum of Rs. 3,87,49,0003/-, together with interest thereon at the rate of 8% per annum from February 11, 2014. It was, however, directed if the company (presently in liquidation) would pay off the aforementioned entire amount inclusive interest and costs assessed at 2000 GMs within a fortnight from the date of the said order, the petition would remain permanently stayed but, in default of such payment the petition would be advertised in the newspapers. The company (presently in liquidation) carried the said order dated August 17, 2015 in appeal ACO No. 146 of 2015 with APOT No. 419 of 2015, before the Division Bench. By order dated September 04, 2015 the Division Bench directed that subject to deposit of Rs. 50,00,000/- (Rupees Fifty Lakh only) by the appellant company within September 11, 2015 there would be stay of operation of the order under appeal and in the case of default, the stay order would stand vacated. Since the company (presently in liquidation) did not comply with the direction for payment passed by the Division Bench on September 14, 2015 the petitioning creditor caused advertisement of the winding up application being published in the newspapers. Thereafter, the proceedings of the said winding up application, C.P. No. 822 of 2014 was stayed on the ground that the company (presently in liquidation) was referred to Board of Industrial and Financial Reconstruction (hereinafter referred to as "BIFR"), under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (in short "SICA, 1985"). Thus, by an order dated March 22, 2016 a learned Single Judge of this Court adjourned the hearing of the said winding up application sine die, with liberty to the parties to mention upon notice.
(3.) On May 28, 2016 the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the IBC") was notified and the said Code came into force on that date. With the Sick Industrial Companies (Special Provisions) Repealing Act, 2003 coming into force with effect from December 01, 2016, any reference pending before BIFR stood abated. Thereafter, the company (presently in liquidation) had an option to make reference to the National Company Law Tribunal (in short "NCLT"), under the IBC within 180 days from December 01, 2016. Nevertheles, the company (presently in liquidation) was not referred to NCLT. On March 16, 2017 the company (presently in liquidation) filed an application, C.A. No. 133 of 2017 praying for, stay of all further proceedings in the winding up application, C.P. No. 822 of 2014. During the pendency of the said application the petitioning creditor and the said company (in liquidation) agreed to settle their disputes in the winding up application and by a consent order dated April 17, 2017 a learned Single Judge of this Court disposed of the said application, C.A. No. 133 of 2017. In terms of the said consent order dated April 17, 2017 the company (presently in liquidation) was liable to pay a sum of Rs. 3,77,88,569/- to the petitioning creditor, out of which Rs. 7,88,569/- was payable at the time of passing of the said order and balance sum of Rs. 3,70,00,000/- would be payable by the company (presently in liquidation) to the petitioning creditor in monthly instalments of Rs. 2,00,000/- each, starting on and from May 02, 2017 and thereafter, on or before the seventh day of each succeeding month. However, in case of default in payment of any two consecutive instalments the petitioning creditor would be entitled to proceed with the winding up proceeding as before. As per the consent order, subject to payment of the entire sum of Rs. 3,77,88,569/- by the company to the petitioning creditor the winding up proceeding would remain permanently stayed upon the matter being mentioned before the Court and in the meantime, the winding up petition would remain adjourned sine die.;