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Any creditor is entitled to seek transfer of pending winding up proceedings to NCLT: SC

November 20, 2020[2020] 121 taxmann.com 228 (SC)
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COMPANY LAW : Proceedings for winding up of a company are actually proceedings in rem to which entire body of creditors is a party proceeding might have been initiated by one or more creditors, but by a deeming fiction petition is treated as a joint petition Official Liquidator acts for and on behalf of entire body of creditors therefore, word 'party' appearing in 5th proviso to clause (c) of sub-section (1) of section 434 cannot be construed to mean only single petitioning creditor or company or Official Liquidator words 'party or parties' appearing in 5th proviso to clause (c) of sub-section (1) of section 434 would take within its fold any creditor of company in liquidation

• Where appellant claiming to be a creditor of respondent-company moved an application before NCLT under section 7 of Insolvency and Bankruptcy Code, 2016 and moved an application before Company Court (High Court) seeking a transfer of winding up petition filed against respondent-company to NCLT but said application was rejected by Company Court on ground that a winding up order had already been passed, it was held that petitioner would come within definition of expression 'party' appearing in 5th proviso to clause (c) of sub-section (1) of section 434 of Companies Act, 2013 and that petitioner was entitled to seek a transfer of pending winding up proceedings against respondent company to NCLT.

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