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Ester Industries Ltd. Vs. Indus Polyfilms Specialists Pvt. Ltd. (Neutral Citation: 2024 : DHC : 3168) - (High Court of Delhi) (24 Apr 2024)

Winding up proceedings pending before High Courts, which are at a nascent stage ought to be transferred to the NCLT



The instant Company Petition has been instituted under Sections 433(e), 434 and 439 of the Companies Act, 1956 seeking winding up of the Respondent company and is predicated on the non-payment of outstanding dues amounting to Rs. 31,78,615 along with interest @ 18% per annum.

It is the case of the Petitioner company that, the Respondent-company failed to discharge its liability despite a notice having been issued under Section 138 of the Negotiable Instruments Act of 1881. Thereafter, in view of the fact that the Respondent company failed/neglected to discharge its liability, the petitioner company was constrained to serve a legal demand notice upon the respondent company under Section 434 of the Companies Act, 1956 calling upon them to repay the outstanding amount of Rs. 31,78,615 along with interest @ 18% per annum. However, despite issuance and service of the legal notice, the respondent company failed to repay the outstanding amount, and hence, the present petition was instituted.

Evidently, the Respondent-company has failed to pay its debt in the normal and ordinary course of its business, hence, the present petition has been filed. However, on a perusal of the record, it is borne out that this winding up petition has been a complete non-starter, and as of yet, no substantial orders have been passed in furtherance of the liquidation of the respondent company.

During the pendency of present proceedings, the Insolvency and Bankruptcy Code, 2016 as well as the Companies Act, 2013, have since been enacted. In view of this, it is the opinion of this Court that the present petition does not deserve to continue before this Court, and it would be appropriate for the same to be transferred to the National Company Law Tribunal.

In Citicorp International Limited v. Shiv-Vani Oil & Gas Exploration Services Limited, it was held that, winding up proceedings pending before High Courts, which are at a nascent stage and have not progressed to an advanced stage, ought to be transferred to the NCLT. Hence, the instant petition is transferred to the NCLT. Parties are directed to appear before the NCLT. Present company petition as well as pending applications are disposed of.


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