# In the matter of Ajay Kumar Agarwal, acting as the Interim Resolution Professional Vs The Official Liquidator, High Court, Calcutta

> HC judgment dated 2019-12-12. Citation: TCN-2019-HC-00003. The case involves a creditor's winding-up petition (CP 1 of 2016) filed against Avani Projects &…

- **Court:** HC
- **Order date:** 12 Dec 2019
- **Citation:** TCN-2019-HC-00003
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/high-courts-chandigarh-bench/ajay-kumar-agarwal-acting-as-the-interim-resolution-professional-vs-the-official-4cade621

## Summary

### Background

The case involves a creditor's winding-up petition (CP 1 of 2016) filed against Avani Projects & Infrastructures Limited under Section 433(e) of the Companies Act, 1956. The petition was admitted, and the company was directed to pay the outstanding amount, failing which the petition would be advertised. The company failed to pay, and the petition was advertised. Subsequently, other creditors joined the proceedings, and a Provisional Liquidator was appointed. Later, Devi Trading & Holding Private Limited, a financial creditor, initiated insolvency proceedings against Avani Projects under Section 7 of the Insolvency and Bankruptcy Code (IBC) before the NCLT. This led to a conflict between the winding-up proceedings before the High Court and the insolvency

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## Facts

Avani Projects & Infrastructures Limited faced a winding-up petition (CP 1 of 2016) initiated by a creditor under Section 433(e) of the Companies Act, 1956, for a sum of Rs.73,95,617. The petition was admitted on December 1, 2017, and the company failed to pay the amount. A Provisional Liquidator was appointed on September 7, 2018. Subsequently, Devi Trading & Holding Private Limited, a financial creditor, initiated insolvency proceedings under Section 7 of the IBC before the NCLT, leading to the appointment of an Interim Resolution Professional (IRP). The IRP then filed an application (CA 92 of 2019) in the High Court seeking the release of the Provisional Liquidator and handover of assets. The winding-up petition was filed on January 4, 2016, and served

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## Issues and analysis

### Issue 1: Whether this Court retains jurisdiction to hear the winding up petition being CP 1 of 2016 and the …

**Ratio:** The court retains jurisdiction over 'saved' winding-up petitions, i.e., those filed

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**Reasoning:** The court reasoned that the legislative intent, as evidenced by the Companies Act, 2013,

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**Interpretation:** Section 434 of the Companies Act, 2013, along with the 2016 Transfer Rules,

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**Application:** Since the winding-up petition was filed and served before the IBC came into

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## Parties

- **Judges:** Arindam Muk…
- **Appellants:** Ajay Kumar…
- **Respondents:** Avani Projects &…; The Official…

## Timeline

- **2016-01-04 — Winding up petition…**: Creditor's winding up petition (CP 1 of 2016) filed against Avani Projects &…
- **2016-02-24 — Direction for exchange…**: Order issued for the exchange of…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 7 — Initiation of corporate insolvency resolution…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-7)

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