No Impediment In Treating Written Submissions As Application For Transfer Of Winding-Up Petition To NCLT: Delhi HC
The Company Petition was filed before the Delhi High Court seeking the winding up of the Respondent Company on the grounds of its inability to pay its debts to the Petitioner Company.
Justice Amit Mahajan, Delhi High Court
In view of the express request for transfer and the legal precedents affirming that a formal application is not indispensable, the Delhi High Court held that there is no impediment in treating the written submissions as an application for transfer of the winding-up petition to the NCLT.
The Company Petition was filed under Sections 433(e)/434(1)(a)/439 of the Companies Act, 1956, seeking the winding up of the Respondent Company - Pinnacle Air Pvt. Ltd., on the grounds of its inability to pay its debts to the petitioner company - COWI India Pvt Ltd. The matter has been pending adjudication before the High Court, and the respondent sought a transfer of the matter to the National Company Law Tribunal (NCLT), Delhi Bench.
The Single Bench of Justice Amit Mahajan said, “The Court is not bound to insist on a separate application when the intent of the party seeking transfer is evident from the record.”
Advocate Sanjay Gupta represented the Appellant while Advocate Amit George represented the Respondent.
Arguments
The counsel for the petitioner opposed the transfer to the NCLT and placed reliance on the judgment of the Calcutta High Court in Abhijeet Projects Ltd. v. Yogesh Khanna (2023) wherein it has been held that a petition cannot be transferred to the NCLT suo motu unless an application is formally made. It was argued that the matter should not be transferred as no such application was filed in this case.
It was the case of the Respondent that the High Court has the inherent jurisdiction to transfer the matter, even suo motu, if warranted in the interests of justice, as per the ruling of the Coordinate Bench of the High Court in Gurbakhsh Singh BA, Builders P. Ltd. v. Fortis Hospital Ltd. (2024).
Reasoning
At the outset, the Bench noticed that the present winding-up petition was a non-starter. The proceedings remained at a preliminary stage, with neither a provisional liquidator nor an official liquidator having been appointed to assume control over the assets and affairs of the respondent company. Moreover, no substantive orders had been passed in this petition for 7 years.
Reference was made to Section 434 of the Companies Act, 2013 which provides for the transfer of proceedings relating to winding up, pending before the High Courts, to the NCLT. The Bench also referred to the judgment of the Apex Court in Action Ispat and Power P. Ltd. v. Shyam Metalics and Energy Ltd. (2021)wherein it was held that those winding up proceedings pending before the High Courts, which have not progressed to an advanced stage, ought to be transferred to the NCLT.
The Bench mentioned that in the present matter, the respondent submitted written submissions explicitly requesting the transfer of the winding-up petition to the NCLT. “In view of the respondent’s express request for transfer and the legal precedents affirming that a formal application is not indispensable, this Court finds no impediment in treating the written submissions as an application for transfer of the present petition to the NCLT”, the Bench said.
“Thus, considering the express request by the respondent, the fact that no substantive proceedings have been undertaken towards winding up of the company, the present petition cannot be allowed to be continued before this Court”, the Bench held while transferring the Petition to the NCLT, Delhi Bench, for further proceedings.
Cause Title: COWI India Pvt Ltd v. Pinnacle Air Pvt Ltd (Neutral Citation: 2025:DHC:849)
Appearance:
Appellant: Advocates Sanjay Gupta, Abhilasha Sharma
Respondent: Advocates Amit George, Manan Batra, Varun Tyagi & Suparna Jain
