Navin Sinha JUDGMENT
Rohinton Fali Nariman, J.
1. The present matter arises from an Operational Creditor's appeal to continue with a winding up petition that has been filed by the said creditor way back in 2014. The facts relevant for disposal of this appeal are as follows:
2. A winding up petition, being No. 42 of 2014, was filed by the present Appellant before the High Court of Delhi on 10.01.2014, against Respondent No. 2-Company, alleging (Under Section 433(e) of the companies Act) inability to pay dues. Notice in this petition had been served, as is recorded by an order dated 20.01.2014 of the High Court of Delhi. Further orders which have been pointed out to us by learned Counsel for the Appellant, have gone on to state that there is a debt or liability which is, in fact, admitted.
3. It was also pointed out by learned Counsel for the Appellant that a Reference had been made by the Company itself on 14.07.2015 to the Board for Industrial and Financial Reconstruction (BIFR) under the Sick Industrial Companies Act, 1985, which, according to the learned Counsel for the Appellant, has abated as on 11.12.2016. It transpires that another operational creditor, viz., SKF India Ltd. had filed an application Under Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short 'the Code'), against Respondent No. 2, which was allowed to be withdrawn so that the aforesaid operational creditor could go to the High Court in a winding up petition which would then be heard along with the Company Petition No. 42/2014.
4. Meanwhile, Respondent No. 1, being a financial creditor of the selfsame corporate debtor, moved the National Company Law Tribunal (NCLT) in an insolvency petition filed Under Section 7 of the Code sometime in May/June 2017. This petition was admitted on 07.08.2017. Against the aforesaid order, an appeal was filed by the Appellant herein which was dismissed by the Appellate Tribunal, in which Section 11 of the Code was referred to, and it was held by the Appellate Tribunal that since there was no winding up order by the High Court, the financial creditor's petition would be maintainable, as a result of which the Appellant's appeal has been dismissed.
5. Learned Counsel appearing on behalf of the Appellant has painstakingly taken us through the record, and has referred to the Code, together with Notifications from the Ministry of Corp........