following post is contributed by Nitu
Poddar, who is an Associate at Vinod Kothari & Co, and can be reached
address the question whether an application for resolution process of a company
can be filed under the Insolvency and Bankruptcy Code, 2016 (“IBC, 2016”) in
case a winding up petition is pending before a High Court?
by the Ministry of Corporate Affairs (“MCA”) in respect of the Companies
(Transfer of Pending Proceedings) Rules, 2016 only provides for the transition of the litigation
process from High Court to the National Company Law Tribunal (“NCLT”). These Rules lay down the criteria for
deciding whether the matter will be filed with and adjudged by the NCLT or by the
Rule 5 of the said Rules, where the petition for winding up has been served on
the company and is pending before the relevant High Court, such petition shall
be adjudged by the High Court. When a matter is being adjudged by the High Court,
1956, the same will be governed by the provisions of the erstwhile Companies
Act, 1956 (“Act, 1956”).
and avoidance of certain transactions
446 of the Act, 1956 envisages that when a winding up order has
been made or the Official Liquidator (OL) has been appointed as Provisional
Liquidator, no suit or other legal proceedings shall be commenced or, if pending
at the date of winding up order, shall be proceeded with against the company,
except with leave of the court.
any suit becomes live only once an order for winding up is passed. In case the
winding up petition is merely served on the company and filed before the High Court
and no order for winding up as such is passed, section 446 does not become
537 of the Act, 1956 declares that any attachment, distress or
execution put in force without leave of the company court against the estate or
effects of a company before such a company is being wound up under the
supervision of the court shall be void. Section
537 of the Act will apply only if a company is being wound up
by or subject to the supervision of the court.
matter of B. Suresh vs AP Mahesh
Co-Operative Urban by the Andhra High Court. It observed as follows:
446 and 537 of the Act is that while a person can proceed to have his
rights against the company that is being wound up/adjudicated with the leave of
the company court, no person is entitled to enforce such rights against such
company during the pendency of the winding up proceedings although such rights
have been determined by a competent court or tribunal without once again
obtaining the leave of the court. Further,
the adjudication proceedings can go on until a winding up order or an order of
the appointment of a provisional liquidator is made, without the necessity of
obtaining the leave of the company court whereas enforcement of any right
adjudicated or otherwise, cannot be made the moment the company is faced with a
winding up proceeding.
declares the rights of the parties execution directly affects the assets of the
company and takes away the assets from the possession or custody of the company
and creates rights in favour of third parties and thereby result in the
proliferation of litigation if eventually the company is directed to be wound
up. It must be remembered that Section
446(1) does not declare that any adjudication made in
contravention of the said section to be void; whereas Section 537 declares–obviously, the reason is that though it is
desirable that the leave of the company court is to be obtained even at the
stage of the adjudication, the non-compliance of the requirement of Section 446(1) may not really affect the assets of the company in
liquidation as the enforcement of the rights so adjudicated is still required
to be done with the leave of the company court under Section 537.
up of a company – the assets of the company get distributed to the various
creditors and contributories. If parallel proceedings are continued along with
winding up (after the order has been passed) – there can be situations of chaos
amongst the creditors and contributories regarding the distribution of assets. The
idea of the provision is to prevent the company from such situations and to
safeguard the company against wasteful and expensive litigation by bringing
matters against the respondent company before a single adjudicatory forum as
far as possible.
of insisting on such leave is to keep the High Court, which is dealing with the
liquidation of the company, posted as a matter of fact as to all the happenings
regarding the assets of the company.
winding up not ordered by the Court
Industries Ltd, the Delhi High Court held that where in a proceeding
for winding up a conditional order was passed that the petition would be
dismissed on payment being made within the stipulated time and the time was
extended by the parties by mutual agreement, and no provisional liquidator was
appointed, it was held that leave of the court for continuation of a proceeding
was not needed. The Court observed:
deposited within the specified time, the Company Petition would stand
dismissed. Further the order provides that in the event of the amount not being
deposited within the time allowed, the Company Petition would stand admitted
and it would be advertised in the Gazette etc. The crucial words in the said
order for present purposes are “in the event of the amount not being
deposited the Official Liquidator will also stand appointed as Provisional
Liquidator”. The Company Court also directed the Official Liquidator to
make an inventory of assets, moveable and immovable of the Company.
parties, it cannot be said that the Company has failed to deposit the amount by
the specified date.
Finance Pvt Ltd, it was held that no leave of the court was required by the plaintiffs to file a suit in
the civil court, as the winding-up order had not been passed by the date of
filing the suit nor was an order appointing the provisional liquidator in force
& Ors, Supreme Court of India referred to another ruling where
the Supreme Court considered
the contrary views expressed by different High Courts on the effect and purport
of section 446(1) of the Act,
1956 and came to the conclusion that the view that failure to obtain leave
prior to institution of suit would not debar the court from granting such leave
subsequently and that the only consequence of the same would be that the
proceedings would be regarded as having been instituted on the date on which
the leave was obtained from the High Court.
conclusions were derived from the reference to earlier decisions of the Supreme
the court is not a condition precedent for initiation of a civil action or the
legal proceedings. It is because the Section does not expressly provide for
annulment of a proceeding that is undertaken without the leave of the court.
There can be no shadow of doubt that leave of the winding up court can be
obtained even after initiation of the proceeding. The second, the seminal object
behind engrafting of the said provision is to see that the interest of the
company is safeguarded so that it does not face deprivation of its right and
claims are adjudicated without the knowledge of the company court and further
the court has a discretion to see whether leave should be granted and, if so,
with what conditions or no condition. That apart, the court may grant leave if
it felt that the company should not enter into unnecessary litigation and incur
section 11 of the IBC, 2016 restricts a corporate
debtor (and not any creditor) from making an application under the IBC,
2016 – in case a liquidation order has been made against such corporate debtor.
notifications on transitioning to NCLT are inappropriately being mixed up with
the provisions of leave of the court in terms of section 446.
provisions are applicable where the applicant is considering whether it should
continue before the court, or move its matter to the NCLT. This is where the
same creditor, who had filed a winding up petition in the court, is seeking to
file a matter before the NCLT. In that case, the question as to whether or not affidavits
have been served on the other side becomes relevant. If so, the proceeding is
effectively initiated, and therefore the proper process for the creditor to
continue before the court.
not the same creditor who filed for winding up, there is no question of
transitioning there. It is making an original reference –it never made any
application before the court. Such a creditor has to consider provisions of section
446 of the Companies Act 1956 (which is relevant, since winding up was
initiated under that Act). The language of the section is very clear.
Mehta & Sons v. AMR Infrastructure Ltd, the Principal Bench of the NCLT
held that the application would not be maintainable since many winding up
petitions have been filed before the Delhi High Court. Even the OL has been
appointed as a provisional liquidator although the matter is presently pending
before the Appellate Bench with interim directions.
NCLT’s view in this matter was in concurrence of the provisions of section 446
of Act, 1956. Since the OL was already appointed for the corporate debtor, the
insolvency application could not be accepted by the NCLT.
Laboratories (India) Private Limited vs Vasan Health Care Private Limited,
an objection was raised by the corporate debtor the that winding up petition is
sub judice before the High Court of
Madras, where the Court permitted Andhra Bank to appoint a suitable person to
conduct forensic audit of the corporate debtor.
NCLT held that pendency of the winding up petition cannot be a bar under the IBC,
2016 for initiating the corporate insolvency resolution process because the High
Court has not passed any order for winding up of the corporate debtor and no OL
has been appointed. Therefore, the objection raised was rejected.
consideration the provisions of Act, 1956, the Companies (Transfer of Pending
Proceedings) Rules, 2016 and the provisions of IBC, 2016, it is possible to conclude
filing under the IBC, 2016 at various stages of winding up process is as
application is served to respondent company and / or pending before the High
Court and no Order has been passed as on the date: – application under IBC,
2016 can be filed with the NCLT without any leave from the High Court;
winding up order has been passed – application under the IBC, 2016 can be filed
the with NCLT with prior leave from the concerned High Court;
between transition rules, and the stay arising due to section 446 of the Act,
should prevent an entity from filing an application for resolution of a company
for which winding up proceedings have been initiated. Even in a case where
order has been passed in this regard, seeking leave from the Court is a matter
of protocol only. This should not be a stumbling block.
has been appointed, and a creditor goes to NCLT seeking resolution, and
therefore goes to court for seeking leave, there is no reason why the court
should not grant leave. If the creditors, under a collective process, decide
that the entity undertake corporate resolution rather than be wound up, of
course the law always prefers restructuring as the first option and winding up
as the last.
granted, one may make a reference to the SC. Since the admitted objective of
the IBC was to clear the deadwood from the system, it can be no one’s argument
that existing cases should remain with courts. After all, most of the major
corporate defaulters are defaulters for a long time now, and it is unlikely
that no creditor would have filed for winding up in such cases.
always free to make an application under sections 7, 8 and 9 of the IBC, 2016
irrespective of any pending winding up petition against the corporate debtor. Once
the application under IBC is admitted, the provisions of IBC become applicable.
In accordance with section 14 of the IBC, all winding up petitions filed and
pending before any forum (NCLT / High Court) will get stayed and no new winding
up petition can be instituted. The stay is from the date of admission of the
application until the completion of the corporate insolvency resolution
resolution process under the Code culminates into liquidation for circumstances
enumerated under section 33 of the IBC, 2016, the same would occur in
accordance with the provisions of the IBC, 2016 and not the Companies Act.