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AFZAL KHAN  Vs GOLF TECHNOLOGIES PVT. LTD. -Judgment by Delhi High Court

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 8th January, 2024

+ CO.PET. 701/2015 & CO.APPL. 2759/2015 �FOR
APPOINTMENT OF OL

AFZAL KHAN ….. Petitioner

Through: Mr. Shantanu M. Adkar and
Mr. Yashveer Singh, Advs.

versus

GOLF TECHNOLOGIES PVT. LTD. ….. Respondent

Through: None

CORAM:

HON’BLE MR. JUSTICE DHARMESH SHARMA

DHARMESH SHARMA, J. (ORAL)

1. This is a petition
under Section 433(e) and (f)
read with Section
434(1) as well as Sections 439, 449 and 450 of the Companies Act,
1956 moved by the petitioner seeking winding up of the respondent
company
�
Golf Technologies Pvt. Ltd
. It is predicated upon the
non
–
payment of a sum of Rs. 80,20,725/
–
by the respondent company
as well as due interest
.
2. Briefly stated, the petitioner is a proprietor of M/s Monalisa
Consturctions, and was selected as the successful bidder for a tender
floated by the respo
ndnent company
for the construction of a
commercial project on plot No. 37, Marol Industrial Estate, MIDC,

Andheri (East), Mumbai � 400093, vide Letter of Intent dated
01.09.2010. Thereafter, Articles of Agreement dated 14.09.2010 were
executed between the parties, setting out the terms and conditions for
the contract. It is stated that although a Completion Certificate dated
10.09.2012 was issued, indicating that the petitioner has satisfactorily
completed the work, certain bills raised were not cleared by the
respondent, which were acknowledged by the respondent. In this
regard, it is submitted that an acknowledgement of the amount due
was made by the respondent vide letter dated 30.10.2013.
3. Despi
te repeated reminders, the respondent company failed to
make good its dues. A legal notice was sent by the petitioner on
07.08.2014 demanding Rs. 80,20,725/
–
along with due interest to the
tune of Rs. 21,65,596/
–
totaling to an amount payable of Rs
1,01,86,321
/-. Thereafter another letter was sent on 14.01.2015
following which a statutory notice dated 07.07.2015, under Section
433 and 434 of the Companies Act, 1956 was served upon the
respondents. However, the respondent failed to repay the amount due,
and as a result of the inability of the respondent to liquidate its
liability, the present winding up petition has been moved by the
petitioner.
4. It appears that the respondent company is unable to discharge
its debt in the ordinary course of business. However, on a perusal of
the record, it is apposite to point out that the present winding up
petition is a complete non-starter. Examination of the record further
shows that neither a Provisional Liquidator nor an Official Liquidator
has been appointed to the respondent company. As such, the present

winding up petition is still at a nascent stage and no substantive orders
have been passed in this company petition.
5. The Insolvency and Bankruptcy Code, 2016 as well as the
Companies Act, 2013, have since been enacted. It is the opinion of
this court that the present petition does not deserve to continue before
this court, and the same stands to be transferred to the National
Company Law Tribunal1
1 NCLT

. In this regard, it is relevant to consider
Section 434 of the Companies Act, 2013 which provides for the
transfer of proceedings relating to winding up, pending before High
Courts, to the NCLT and reads as under:

�434. Transfer of certain pending proceedings

(1) On such date as may be notified by the Central Government in
this behalf,-

(a) all matters, proceedings or cases pending before the Board of
Company Law Administration (herein in this section referred to as
the Company Law Board) constituted under sub-section (1) of
section 10E of the Companies Act, 1956 (1 of 1956), immediately
before such date shall stand transferred to the Tribunal and the
Tribunal shall dispose of such matters, proceedings or cases in
accordance with the provisions of this Act; (b) any person
aggrieved by any decision or order of the Company Law Board
made before such date may file an appeal to the High Court within
sixty days from the date of communication of the decision or order
of the Company Law Board to him on any question of law arising
out of such order: Provided that the High Court may if it is satisfied
that the appellant was prevented by sufficient cause from filing an
appeal within the said period, allow it to be filed within a further
period not exceeding sixty days; and

(b)all proceedings under the Companies Act, 1956 (1 of 1956),
including proceedings relating to arbitration, compromise,
arrangements and reconstruction and winding up of companies,
pending immediately before such date before any District Court or
High Court, shall stand transferred to the Tribunal and the Tribunal
may proceed to deal with such proceedings from the stage before
their transfer: Provided that only such proceedings relating to the

winding up of companies shall be transferred to the Tribunal that
are at a stage as may be prescribed by the Central Government.

Provided further that only such proceedings relating to cases other
than winding-up, for which orders for allowing or otherwise of the
proceedings are not reserved by the High Courts shall be
transferred to the Tribunal [Provided also that]-

(i) all proceedings under the Companies Act, 1956 other than the
cases relating to winding up of companies that are reserved for
orders for allowing or otherwise such proceedings; or

(ii) the proceedings relating to winding up of companies which
have not been transferred from the High Courts; shall be dealt with
in accordance with provisions of the Companies Act, 1956 and the
Companies (Court) Rules, 1959.]

Provided also that proceedings relating to cases of voluntary
winding up of a company where notice of the resolution by
advertisement has been given under subsection (1) of section 485
of the Companies Act, 1956 but the Company has not been
dissolved before the 1st April, 2017 shall continue to be dealt with
in accordance with provisions of the Companies Act, 1956 and the
Companies (Court) Rules, 1959.�

6. It is also expedient to consider the decision of the Supreme
Court in the case titled Action Ispat and Power Limited v. Shyam
Metalics and Energy Limited2
2 (2021) 2 SCC 641

, whereby it was held that those
winding up proceedings pending before High Courts, which have not
progressed to an advanced stage, ought to be transferred to the NCLT.
The relevant extract of the said decision is as follows:

�22. Given the aforesaid scheme of winding up under Chapter XX
of the Companies Act, 2013, it is clear that several stages are
contemplated, with the Tribunal retaining the power to control the
proceedings in a winding up petition even after it is admitted. Thus,
in a winding up proceeding where the petition has not been served
in terms of Rule 26 of the Companies (Court) Rules, 1959 at a
preadmission stage, given the beneficial result of the application of
the Code, such winding up proceeding is compulsorily transferable
to the NCLT to be resolved under the Code. Even post issue of
notice and pre admission, the same result would ensue. However,

post admission of a winding up petition and after the assets of the
company sought to be wound up become in custodia legis and are
taken over by the Company Liquidator, section 290 of the
Companies Act, 2013 would indicate that the Company Liquidator
may carry on the business of the company, so far as may be
necessary, for the beneficial winding up of the company, and may
even sell the company as a going concern. So long as no actual
sales of the immovable or movable properties have taken place,
nothing irreversible is done which would warrant a Company Court
staying its hands on a transfer application made to it by a creditor
or any party to the proceedings. It is only where the winding up
proceedings have reached a stage where it would be irreversible,
making it impossible to set the clock back that the Company Court
must proceed with the winding up, instead of transferring the
proceedings to the NCLT to now be decided in accordance with the
provisions of the Code. Whether this stage is reached would
depend upon the facts and circumstances of each case.�

7. In view of the foregoing discussion, it is the opinion of this
Court, that given the inceptive nature of the present winding up
petition and furthermore, since no substantive proceedings have been
undertaken towards winding up of the company, the present petition
does not deserve to be continued before this Court. This petition is at a
very nascent stage and no effective orders as such have been passed
towards the winding up of the company.
8. In view of the above, the present company petition is
accordingly disposed of. Pending applications, if any, also stand
disposed of.
9. Hence, the instant petition is transferred to the NCLT. Parties to
appear before the NCLT on 01.03.2024. The interim orders passed by
this Court in this petition, if any, shall continue till the said date.
10. It is left to the NCLT to consider the matter and pass
appropriate orders in accordance with law.

11. The electronic record of the instant petition be transmitted to the
NCLT within a period of one week by the Registry. List before the
NCLT on 01.03.2024.

DHARMESH SHARMA, J.

JANUARY 08, 2024

Sadique