V. Ramasubramanian JUDGMENT
V. Ramasubramanian, J.
1. Leave granted.
2. Aggrieved by an order passed by the Company Court (High Court of Allahabad), refusing to transfer the winding up petition pending therein, to the National Company Law Tribunal (NCLT for short), a financial creditor has come up with this appeal.
3. Heard Mr. Huzefa Ahmadi, learned Senior Counsel appearing for the Appellant, Mr. A.N.S. Nadkarni, learned Senior Counsel appearing for the 1st Respondent-corporate debtor and Gp. Capt. Karan Singh Bhati, learned Counsel appearing for the official liquidator.
Background Facts
4. One M/s. Girdhar Trading Co., the 2nd Respondent herein, filed a petition in Company Petition No. 24 of 2015 before the High Court of Allahabad Under Section 433 of the Companies Act, 1956, for the winding up of the first Respondent company, on the ground that the Company was unable to pay its debts. The Company Court ordered notice to the 1st Respondent herein, but the 1st Respondent failed to appear before the Company Court.
5. Therefore, by an order dated 08.01.2016 the Company Court ordered the admission of the Company Petition and also directed publication of the advertisement of the petition in accordance with Rule 24 of the Companies (Court) Rules, 1959. Pursuant to the said order, the 2nd Respondent herein (petitioning creditor) effected a publication of the advertisement in the Official Gazette in Form No. 48 on 30.01.2016. Newspaper publications were also made, indicating the date of hearing of the Company Petition as 29.02.2016.
6. Thereafter, the Company Court passed an order dated 10.03.2016 directing the winding up of the 1st Respondent Company on the ground that the Company has been unable to pay its debts and that it was just and equitable to wind up the 1st Respondent Company.
7. By the aforesaid order dated 10.03.2016, the Company Court appointed the official liquidator attached to the High Court of Allahabad as the Liquidator and directed him to take over the assets and books of accounts of the Company. The order of winding up was also directed to be advertised in Form 53 in two newspapers, as required Under Rule 113 of the Companies (Courts) Rules 1959.
8. Thereafter, the 1st Respondent filed an application for recalling the order of winding up dated 10.03.2016. The 1st Respondent, in order to prove their bonafides paid the entire amount due to the petitioning creditor (the second Respondent herein) along with costs. Therefore, the petitioning creditor had no objection to the recall of the order of winding up.
9. But the official liquidator opposed the application for recall on the ground that the 1st Respondent-Company owed money to various creditors to the tune of Rs. 27 Crores and that unless the said amount is paid, the order of winding up cannot be recalled. The Official Liquidator also submitted that he had already tak........