Avalokiteshwar Valinv Ltd & Ors vs Regional Director, Northern Region, ...

Regional Director, Northern Region, Ministry af Corporate Affairs, Respondent

Present: Mr. Javant Shantaram Joshi, Advacate for the appellant,

ORDER

05.08.2017. The Appellant preferred an application betore National Company Law Tribunal, Principal Bench, New Delhi for modification of the order dated 16 April, 2016, passed by the Han'ble High Court of Delhi, The said order was passed in a petition under section 3¢1 of Companies Act, 1956. National Company Law Tribunal, by impugned order dated 16%

February, 2D17, passcd following orders:

"This is an application with a prayer for modiication of the erder dated 16.04.2015 passed by the Han'ble High Court of Delhi. it is appropriate te mention that this is the final order passed on the secand motion. In the application following prayers have been

made:

a} The modified Scheme of arrangement as submitted and attached us Annexure C may be approved arud/ar

b) The Hon'hle Court may be pleased to madify Para 4 af the order dered 16.04.2015 passed m the Company Petition no. i of 2075 as under

i {60 mew ordinary equity shares shall be issued and allotted at par by the resulting company for every 246,4282 fully paid up equity shares of Rs. 10/-eack held in the Demerged Company No. .

i, JOO nese ordinary equity shares shall be issued und allotted, at

pur by the resulting company for every 894,493 fully paid up equity

LL LLL Eee

2.

é

shares of Rs.10/- each held in the Demerged Company Nos

sud for

Company be allowed tn initiate necessary action in rectify the axoess issue/ credit of 3,440 shares,

a} Pass such further and other orders as the court may deem fil in the

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cirewmstances of fhe presenti case may require. The application has been ordered to be transferred ta the Principal Bench of the NOCLT vide order dated 18.01.2017 passed by Han'ble High Court. It appears that the High Court toas net posted

unth the fot that

the petitioner has requested for modification af para ¢ of the order duted

16.04.2018 passed by the Hon'ble High Court. We are of Me considered view that such an application would necessarily falls within the domain of the High Court as the NCLT uxnuild not be able

io modify the order passed by the Hon'ble High Court. Accordingly,

s ay

the application is sent back te the High Court for passing ¢ appropriaix orders. The Court Master s hadi sent back the papers at the eurlwst ~

Ld. Counsel appearing on behalf of the Appellant referred to Rule 3

framed in exercise of powers conferred under sub-sections (1) & (2) of

.

seotion 434 of the Companies Act, 2013, (18 of 2013} read with sub- seotian

(3) of section 239 of the Insulvency Bankruptcy Cude, 20106 (31 af 2016}

notified on 7h Deoember, 2016, which reads as follows:

3.

'3, Transfer of pending proceedings relating fo cases other than Winding up AN proceedings under the Act, inehuding proceedings relating fo arbitration, compromise, arrangements and reconstruction, other than proceedings relating to winding up on the date af suming inte force of Utese Rules shall stand transferred te the 'ising respective territorial jurisdiction:

Benches of the Tribunal exe Provided that all thase prox allowing ar otherwise of such promeedings shall nof be transferred."

edings which are reserved fur orders for

it ig contended that under Rule 3, the case stands transferred to it was well within the

National Company Law Tribunal and therefore, i

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jurisdiction of the Principal Bench of NCLT to modify the scheme earher

framed by the Hon'ble High Court.

Ba

ay In one of the case, the Appellate Tribunal has doubted the power of the Central Government in framing Rules under sub-section (1) of Section 239 of Insolvency and Bankruptcy Code, 2016, for transfer of petition under sub section (1) of section 434 of the Companies Act, 2013. However,

we are not going to deliberate on such issuc in this present appeal,

x

Oo, As we find that Hon'ble High Court has already passed a final order relating framing a scheme on 16% April, 2015, im Company Petition 13/2015 and thereby, passed final order, we agree with the observations made by the Tribunal that such order can be modified only by the Han'ble

High Court.

6. For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 16.02.2017. The appeal stands disposed of with the

aforesaid observations.

(Justice Su. Mukhopadhaya) Chairperson

iMr. Balvincder Singh} Member(Technical)