Page 215 - IBC Orders us 7-CA Mukesh Mohan

Order Passed Under Sec 7
Hon’ble NCLT Ahemdabad Bench

be a bar under the Code for initiating the corporate insolvency process unless the winding up

order has been passed by the Hon'ble High Court and Liquidator has been appointed. The said
order was challenged before the National Company Law Appellate Tribunal, New Delhi. The
National Company Law Appellate Tribunal, in Company Appeal (AT) (Insolvency) No. 41 of

2017 vide its order dated 19.5.2017 referring to Section 14 of the Code and Section 238 of the
Code observed that the provisions of Insolvency and Bankruptcy Code will prevail over all other

Laws in force including the Companies Act, 1956. It is also observed in the said order that the
said provisions have not been brought to the notice of the Hon'ble Judge of the Madras High
Court in the petitions filed by Vasan Healthcare Pvt. Ltd. before the Hon'ble High Court of

Madras vide Company Applications No. 462 and 463 of 2017 in Company Petition No. 267 of
2015 on the File of Hon'ble High Court of Madras. It is a fact that Hon'ble High Court of Madras
stayed the order of the National Company Law Tribunal, Chennai Bench passed in

CA/1/(IB)/2017 on 21.4.2017. However, in view order of the National Company Law Tribunal,
Chennai Bench, and in view of the observations made by the National Company Law Appellate
Tribunal, New Delhi, it is more than clear that the provisions of the Insolvency Code will prevail

order all other Laws in force in case of insolvency including the Companies Act, 1956
underwhich winding up proceedings have been initiated.

19. Learned Counsel appearing for the Application cited the decision in M/s. Nowfloates
Technologies Pvt.Ltd. Vs. M/s. Getit Infoservices Pvt.Ltd., reported in 2017 SCC Online NCLT
89, rendered by the National Company Law Tribunal, Special Bench at New Delhi. In that case,

the Hon'ble High Court of Delhi appointed Official Liquidator as 'Provisional Liquidator' and
therefore in case Interim Resolution Professional is appointed by the Tribunal there would be
conflict in administering the assets of Corporate Debtor in that case. In those circumstances, the

Special Bench of New Delhi disallowed the Insolvency Resolution Process. But in the case on
hand, the winding up petition filed by other creditors including the present Applicant are not even
admitted by the Hon'ble High Court of Bombay till today.

20. Learned Counsel appearing for the Application contended that propriety also demands this
Adjudicating Authority to postpone the order in CP No.(IB) 48/2017. When there is no order

from the Hon'ble High Court of Bombay, it is neither just nor expedient nor appropriate to
postpone the pronouncement of order in CP No.(IB) 48/2017 awaiting an order from the Hon'ble
High Court of Bombay.

21. The argument of the learned counsel for the Applicant that his client being the Financial Creditor,
he is entitled to be heard in CF No.(IB) 48/2017 do not merit acceptance for the simple reason

that neither Section 7 of the Code nor the relevant Rule 4 of the Adjudication Rules do not

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