VidhiSangh

Supreme Court of India · 22/01/2019

FORECH INDIA LTD. versus EDELWEISS ASSETS RECONSTRUCTION CO. LTD.

[2019] 2 S.C.R. 477 · 2019 INSC 77

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Summary

An operational creditor’s pending, served winding-up petition did not bar an independent financial creditor’s insolvency proceeding under the Code. The Court upheld admission of the latter while rejecting the appellate tribunal’s reliance on Section 11 as irrelevant. Pre-admission service under the Companies (Court) Rules explained which old petitions were initially retained by High Courts, but retention did not exclude Code remedies. The operational creditor was given liberty to seek transfer under the 2018 proviso to Section 434.

Issues

  1. Whether a served High Court winding-up petition prevents an independent Section 7 insolvency proceeding.
  2. Whether Rules 26 and 27 concern pre-admission or only post-admission notice.
  3. Whether Section 11(d) governs creditor-initiated petitions in this situation.
  4. Whether the operational creditor could seek transfer of its retained winding-up case.

Provisions considered

Held

Result

Appeal disposed of without interfering with the appellate tribunal’s ultimate order. Liberty granted to seek transfer of the pending winding-up petition under the 2018 proviso to Section 434 for treatment as a Section 9 proceeding.

Judgment PDF: Supreme Court of India, [2019] 2 S.C.R. 477.