The Single Judge recalled a winding up order passed after a moratorium was imposed under the IBC. The petitioner was directed to advertise the recall and withdraw the petition.
Order dated 22nd December 2017 recalled. Petitioner to advertise recall and withdraw petition. O.L. discharged.
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11-cp-471-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION
COMPANY PETITION NO.471 OF 2015
Axis Bank .. Petitioner Versus MMS Infrastructure Ltd. .. Respondent
Dr. Birendra Saraf with Mayur Bhojwani and Shadab Jain I/b. Manilal Kher Ambalal & Co. for petitioner
Mr. B.S.Mahajani for ex-Directors
CORAM : K.R.SHRIRAM, J. DATE : 3rd July 2018.
P.C.
By an order dated 22nd December 2017, the respondent company MMS Infrastructure Ltd. was ordered to be wound up.
2] The petitioner has placed on record today an affidavit of one Rajesh Kumar Dalia, affirmed on 2nd July 2018 stating that the NCLT had, in a petition filed by an operational creditor M/s. Nabh Interior Works, admitted the petition under Section 9 of the Insolvency and Bankruptcy Code 2016 and by its order dated 21st November 2017, declared moratorium in respect of the company in terms of sections 13 and 14 of the IBC. It is stated that on 31st May 2018, an interim resolution professional (IRP) was also appointed and a public announcement was made inviting claims. Dr. Saraf states that in response to the public announcement, the petitioner has lodged its claim with the IRP.
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11-cp-471-15.doc
3] Dr. Saraf states that in view of the moratorium pursuant to the order that was pronounced on 21st November 2017 but delivered on 4th December 2017, the order dated 22nd December 2017 winding up the company could not have been passed. Therefore, Dr. Saraf states that the order dated 22nd December 2017 be recalled. The petitioner be permitted to withdraw the petition and pursue its claim with the IRP.
4] I agree with Dr. Saraf that when there was a moratorium in existence, the order dated 22nd December 2017 could not have been passed. Of course, the order would not have been passed had the petitioner brought it to the notice of this Court but the petitioner also was not aware of the order as stated in the affidavit of Rajesh Kumar Dalia affirmed on 2nd July 2018.
5] In the circumstances, the explanation given by the petitioner is accepted and the order dated 22nd December 2017 is recalled. At the same time, since the petition was originally admitted and advertised and an order of winding up has been passed, the petitioner to advertise, in Free Press Journal and Navshakti, about recall of this order dated 22nd December 2017 and the subsequent withdrawal of petition by the petitioner. O.L. is discharged. Notice to be given within two weeks from today. The wording of the notice to be proved by the Liquidator.
(K.R.SHRIRAM, J.)
1 issue framed by the court
Whether the winding up order passed after the imposition of moratorium under the Insolvency and Bankruptcy Code should be recalled.
3 provisions across 2 enactments
Axis Bank
MMS Infrastructure Ltd.
K.R. Shriram
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
