# Jagriti Upbhogta Kalyan Parishad, M.P. & Ors v. Union of India & Ors - **Citation:** (2022) 6 ILRA 1075 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-03-16 - **Case number:** Company Petition No. 16 of 2019 - **Bench:** Surya Prakash Kesarwani - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagriti-upbhogta-kalyan-parishad-m-p-ors-v-union-of-india-ors-48629 - **Pages:** 14 ## Headnote 1076 INDIAN LAW REPORTS ALLAHABAD SERIES Jitendra Pandey, Sri K.C. Rajput, Sri K.C. Sinha, Sri Mahesh Srivastava, Mis Laxmi Arvind, Mrs. V.D. Khanna, Sri N.I. Jafri, Sri Prabhakar Tripathi, S.C., Sri V.K. Saxena, Sri W.H. Khan, Sri Gulrej Khan A. Civil Law - Companies Act, 1956 - Section 434© of the r/w Rule 530 of Companies (Transfer of Pending Proceedings)Rules, 2016-- Second proviso to Section 434(1)(c) provides that any party to winding up proceedings pending before any Court immediately before the commencement of IBC, may file an application for transfer of such proceedings and the Court may transfer all such proceedings to the NCLT. However, the said proviso does not mandate that the proceedings would automatically stands transferred rather it leaves the decision with the Court where the winding up proceedings are pending, to transfer the same or not to transfer the same. The applications of the applicants/respondent no.12 do not even disclose specifically as to why power to transfer the winding up petition should be exercised by this Court and the winding up petition should be transferred, particularly when after journey of about 25 years the matter is now about to reach to its logical end. B. Transfer of petition pending in High Court to NCLT can be made when no irreversible steps towards winding up of the Company have otherwise taken place. Held: Transfer Application rejected. (E-12) List of Cases cited:- ## Text _Characters 0–39,707 of 44,597. This is a partial read: ask again with offset=39707 for what follows._ 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1075 20. Learned AGA Sri Arunendra Kumar Singh also submitted that the FIR could not be tinkered with lightly. He relied upon the judgements of the Supreme Court which had been relied upon by the learned counsel for the respondent no. 4. 21. Learned counsel for the State also submitted that the offences alleged in the FIR were of a continuing nature and they could not be taken lightly. Still further, learned AGA submitted that most of the judgements which had been cited by the learned counsel for the petitioner were for the quashing of the charge sheet. 22. Having heard learned counsel for the parties, the Court finds from the perusal of the First Information Report that there are allegations which reveal the commission of a cognizable offence. Respondent No. 4 has alleged various kinds of cruelties which had led her to various illnesses. The respondent no. 4 had also alleged that there was a miscarriage which had resulted because of the fact that the petitioner had pushed her. Still further the Court finds that the respondent no. 4 was being deprived of her financial resources and that had driven her to come back to India and in India also, the Court finds, there was a threat made vis-a-vis the respondent no. 4 and her parents on 26.2.2021 when two persons had reached her house at 5.30 PM and had threatened her with dire consequences. The arguments of the learned counsel for the petitioner that the FIR was a counter-blast to the notice for divorce and that the FIR itself was a malicious persecution of the petitioner do not hold any water. 23. Under such circumstances, when the First Information Report definitely discloses the commission of cognizable offences the writ petition does not warrant any interference. 24. The Court also finds that under Section 188 and 189 Cr.P.C. the offences alleged to have been committed beyond the territory of India by an Indian citizen could be investigated into and also tried in India. 25. Both the writ petitions are, accordingly, dismissed. 26. Dismissal of the Criminal Misc. Writ Petition No. 7081 of 2021 and Criminal Misc. Writ Petition No. 7082 of 2021 would not in any manner come in the way of the petitioner in availing the remedies which might be available under the Cr.P.C. ---------- (2022)06ILR A1075 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.03.2022 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. Company Petition No. 16 of 2019 Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. ...Petitioners Versus Union of India & Ors. ...Respondents Counsel for the Petitioners: Sri A.K. Ganguly, Sri Amrendra Nath Singh, Sri B.B. Paul, Sri K.P. Singh, Sri K.R. Singh, Sri Kunwar Bhadur Dixit, Sri N.C. Gupta, Sri R.C. Srivastava, Rachna Srivastava, Sri Rajeev Mishra, Rani Chhabra, Sri Sujeet Kumar, Sri U.N. Khare, Sri Vikash Pathak, Sri Vivek Saran Counsel for the Respondents: Sri V.A. Mehta, A.S.G.I., Sri Amit Mishr, Sri Anil Katiyar, Sri B.N. Singh, C.S.C., Sri G.S. Hajela, Sri Gyan Prakash, Sri Javed Husain Khan, Sri 1076 INDIAN LAW REPORTS ALLAHABAD SERIES Jitendra Pandey, Sri K.C. Rajput, Sri K.C. Sinha, Sri Mahesh Srivastava, Mis Laxmi Arvind, Mrs. V.D. Khanna, Sri N.I. Jafri, Sri Prabhakar Tripathi, S.C., Sri V.K. Saxena, Sri W.H. Khan, Sri Gulrej Khan A. Civil Law - Companies Act, 1956 - Section 434© of the r/w Rule 530 of Companies (Transfer of Pending Proceedings)Rules, 2016-- Second proviso to Section 434(1)(c) provides that any party to winding up proceedings pending before any Court immediately before the commencement of IBC, may file an application for transfer of such proceedings and the Court may transfer all such proceedings to the NCLT. However, the said proviso does not mandate that the proceedings would automatically stands transferred rather it leaves the decision with the Court where the winding up proceedings are pending, to transfer the same or not to transfer the same. The applications of the applicants/respondent no.12 do not even disclose specifically as to why power to transfer the winding up petition should be exercised by this Court and the winding up petition should be transferred, particularly when after journey of about 25 years the matter is now about to reach to its logical end. B. Transfer of petition pending in High Court to NCLT can be made when no irreversible steps towards winding up of the Company have otherwise taken place. Held: Transfer Application rejected. (E-12) List of Cases cited:- 1. Reserve Bank of India a Statutory Body Vs Sahara India Financial Corporation Ltd. 2019 3 ADJ 540(LB) 2. Action Ispat & Power Pvt. Ltd. Vs Shyam Metalics and Energey Ltd. (2021) 2 SCC 641 (para 14 to 26) (Delivered by Hon'ble Surya Prakash Kesarwani, J.) 1. Heard Sri W.H. Khan, learned senior advocate assisted by Sri Gulrez Khan, learned counsel for the applicant/ respondent No.12 and Sri Vivek Saran holding brief of Sri Vikas Pathak, learned counsel for the petitioner on Civil Misc. Application No.48 of 2019, dated 09.09.2019, Civil Misc. Application No. 49 of 2019 dated 30.11.2019 and Civil Misc. Application No.52 of 2020 dated 30.07.2020, filed by the respondent No.12 and objections thereto filed by the petitioner being objection Nos. 54 of 2020, 55 of 2020 and 56 of 2020, dated 20.10.2020, 20.10.2020 and 03.11.2020 respectively. 2. By the aforesaid three applications, the applicant/respondent no.12 has prayed as under : Civil Misc. Application No. 48, dated 09.09.2019 Civil Misc. Applicati on No.49 dated 30.11.201 9 Civil Misc. Application No. 52 dated 30.07.2020 "1. That the Winding up Petition may be dismissed. 2. That the Company be permitted to restart its business with the assets it possessed and prosecute the objects for which it was incorporated. 3. That the claims made against the Company S.B. Petroleum Ltd. Is "1. That the winding up petition may be dismissed . 2. That the claimants (if any) against the Company S.B. Petroleu m Ltd "1. further appointment of a Special Commission er may be dispensed off with. 2. the winding up petition may be dismissed. 3. the claimants if any, against the Company S.B. Petroleum 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1077 denied by the Company and is disputed and the claim requires evidence oral and documentary for which remedy lies in the common court/appropriate court of law. " may be directed to file their claims before the NCLT." Ltd may be directed to file their claims before the NCLT." 3. The main contention of learned counsel for the applicant/respondent no.12 is that since the Company's Act, 1956 has been repealed by the new Act i.e. The Companies's Act, 2013 (hereinafter referred to as "the Act 2013") and the Insolvency and Bankruptcy Code 2016 (hereinafter referred to as "the IBC") has been enacted, therefore, by virtue of Section 434(1)(c) of the Act, 2013 read with Rule 5 of the Companies (Transfer of pending proceedings) Rules, 2016 (hereinafter referred to as "the Transfer Rules, 2016"), the present Company petition is not maintainable before this Court and it has to be transferred to the National Company Law Tribunal (for short "NCLT") constituted under Section 408 read with Section 410 of the Act 2013. 4. This petition was heard on several occasions and detailed orders including the orders dated 29.09.2020, 02.12.02020 and 20.01.2021 were passed incorporating the submissions of learned counsels for the parties. 5. By order dated 02.12.2020, following questions were framed for consideration :- (i) Whether in view of Section 434(1)(c) of the Companies Act 2013 read with Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, the present Company petition which by order dated 28.5.2019 passed by the Division Bench converted the PIL No.12324 of 2003 into the present Company Petition, can be proceeded with by the High Court or it has to be transferred to the NCLT" ? (ii) Whether after the enactment of the Companies Act 2013, the present petition could have been registered as Company Petition by converting PIL No.12324 of 2003 by order dated 28.05.2019 whereas after enactment of the Act 2013 and constitution of the Tribunal NCLT under Section 408 read with Section 410 of the Act 2013, no Company Petition would lie to the High Court ? 6. Learned counsel for the applicant/respondent no.12 has submitted as under :- (A) In view of Section 408, 410 and 434(1)(c) of the Companies Act, read with the 5th proviso, the High Court has no jurisdiction to entertain or proceed with a Company Petition inasmuch as the jurisdiction in Company Petition for winding up on the ground of inability to pay tax is maintainable only before the NCLT. Reliance is place on the judgment of Hon'ble Supreme Court dated 22.01.2019 in Civil Appeal No.818 of 2018 (Forech India Ltd. Vs. Edelweiss Assets Reconstruction Co. Ltd.) (paras 12 and 17). (B) As per Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, enacted by Notification dated 07.12.2016 as amended by 2nd amendment Notification dated 29.06.2017, all petitions relating to winding up under Clause (e) of Section 433 of the Companies Act, 1946 on the ground of inability to pay debts, pending before the High Court as on 15.12.2016 stood transferred to the NCLT. 1078 INDIAN LAW REPORTS ALLAHABAD SERIES Therefore, this Court should also transfer the present petition to NCLT. (C) It is admitted that the order dated 28.05.2019 in PIL No.12324 of 2003 was passed by the Division Bench with the consent of the parties. The relevant portion of paragraph-47 of the aforesaid order dated 28.05.2019, reads as under: "(II) Since it is an old matter, Registry of this Court now shall register a Winding Up Company Petition and place this matter before Company Judge so that Court may proceed in the matter by considering claims of the parties The property, movable or immovable, in the custody of District Administration or the Registrar General etc., shall be taken in custody by Company Judge or if so directed, shall be handed over to Official Liquidator for maintenance of property and dealing with the same in the manner as directed by Company Judge in the winding up petition. (III) Till further order is passed by Company Judge, Registrar General is directed to keep the entire money, as detailed in para 38 of this order, in a fixed deposit and thereafter it shall be dealt with in the manner as directed by Company Judge. (IV) Claim of M/s Pushpa Petroleum is said to be founded on a compromise between the said Firm and M/s SBPL dated 04.04.2005. The Company Judge shall look into its genuineness and pass appropriate order." (D) The aforesaid order was passed on no objection/ consent of the applicant/ respondent No.12 but that consent or no objection does not confer any power upon the High Court to proceed with the present matter as a company petition, inasmuch as the High Court has no jurisdiction to proceed with the company petition under the Companies Act, 2013. Now company petition can be filed by the petitioner only before the NCLT in accordance with the provisions of the Companies Act, 2013. (E) In any case, this court cannot proceed with the present company petition and instead the matter should be remitted to the NCLT under Section 271 of the Companies Act, 2013. 7. Learned counsel for the petitioner has submitted as under :- (a) A Writ (C) No.758 of 1996 (Jagriti Upbhogta Kalyan Parishad and others Vs. Union Of India and Others was filed by the present petitioners before the Hon'ble Supreme Court under Article 32 of the Constitution of India and by Order dated 13.01.2003, Hon'ble Supreme Court has disposed of the writ petition with certain directions and consequent thereto a public interest litigation (PIL) No.12324 of 2003 (Jagriti Upbhogta Kalyan Parishad Thru Its Joint Secretary Vs. Union Of India and Others) was registered in this Court and after various steps were taken under directions of this Court pursuant to the aforesaid order of Hon'ble Supreme Court, the aforesaid PIL was disposed of by order dated 28.05.2019 with the following directions :- "(I) CBI Court shall proceed to decide the cases pending before it ensuring hearing on day to day basis. It should endeavor to complete trial in all these cases expeditiously since sufficient time has already elapsed. Now it is expedient that proceedings should be completed within two years, but if for any good or valid reason, it fails to do so, it may submit a progress report to the Court seeking further time. (II) Since it is an old matter, Registry of this Court now shall register a Winding 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1079 Up Company Petition and place this matter before Company Judge so that Court may proceed in the matter by considering claims of the parties The property, movable or immovable, in the custody of District Administration or the Registrar General etc., shall be taken in custody by Company Judge or if so directed, shall be handed over to Official Liquidator for maintenance of property and dealing with the same in the manner as directed by Company Judge in the winding up petition. (III) Till further order is passed by Company Judge, Registrar General is directed to keep the entire money, as detailed in para 38 of this order, in a fixed deposit and thereafter it shall be dealt with in the manner as directed by Company Judge. (IV) Claim of M/s Pushpa Petroleum is said to be founded on a compromise between the said Firm and M/s SBPL dated 04.04.2005. The Company Judge shall look into its genuineness and pass appropriate order." (b) Pursuant to the aforesaid directions, the aforesaid PIL was converted/registered as the present Company petition No.16 of 2019, with the consent of the applicants herein/respondent no.12. (c) Vide para (a) of the order, Hon'ble Supreme Court transferred entire papers of the aforesaid Writ Petition requesting Hon'ble the Chief Justice of this Court to constitute the Special Bench to deal with the matter and the Special Bench will appoint a retired Judge of the High Court as a Special Commissioner. (d) The Special Commissioner, in terms of the aforequoted order of Hon'ble Supreme Court and pursuant to the orders passed by the High Court from time to time, took effective steps and did the needful to adjudicate the claims. The aforesaid writ petition was registered as PIL No.12324 of 2003 but by order dated 28.05.2019, the High Court directed the PIL to be converted into a Company petition which is the present Company Petition No.16 of 2019. (e) Present case is not a winding up proceedings under the Companies Act, 1956 but it is a petition registered under the order dated 28.05.2019 passed by the High Court in PIL No.12324 of 2003. (f) The jurisdiction of the High Court to proceed with the present Company Petition, under the peculiar facts and circumstances of the case and the aforequoted order of Hon'ble Supreme Court; is not ousted even as per provisions of Section 434(1)(c) of the Act, 2013 read with Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, particularly when this company petition was not pending as on the cut off date i.e. 15.12.2016. Therefore, present company petition should be concluded by the High Court. (g) PIL No.12324 of 2003 was converted into the present Company petition by order dated 28.05.2019, passed by the High Court which was passed on "no objection" filed by all the contesting parties including the petitioners and the respondent no.12. Therefore, after getting the P.I.L. converted with consent into a company petition, the respondent no.12/applicants can not raise objections that the present company petition can not be adjudicated by the High Court. (h) Since PIL No.12324 of 2003 was converted into the present Company Petition by order dated 28.05.2019, passed by the Division Bench of this court, therefore, the present petition is not a petition for the purposes of Section 434(1)(c) or Section 271 of the Companies 1080 INDIAN LAW REPORTS ALLAHABAD SERIES Act, 2013. It is a petition under the orders passed in the aforesaid PIL, therefore, the provisions of Section 271 or Section 434(1)(c) of the Companies Act, 2013, shall not be attracted. Reliance is placed on the principles laid down in Reserve Bank of India A Statutory Boday vs. M/s. Sahara India Financial Corporation Ltd., 2019 (3) ADJ 540 (LB). (i) A company petition cannot be automatically transferred by the High Court to the Tribunal under Section 434 (1)(c) of the Companies Act, 2013 rather third proviso to Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 as amended by the Second Amendment Rules vide GSR 732(E) dated 29.06.2017 leaves the discretion with the court where the winding up proceedings are pending to transfer it or not to transfer it to the Tribunal. Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 as amended on 29.06.2017, reads as under: "5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up of a company under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and, where the petition has not been served on the respondent under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Companies Act, 2013 exercising territorial jurisdiction to be dealt with in accordance with Part II of the Code: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with rule 7, required for admission of the petition under sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal upto 15th day of July, 2017, failing which the petition shall stand abated: Provided further that any party or parties to the petitions shall, after the 15th day of July, 2017, be eligible to file fresh applications under sections 7 or 8 or 9 of the Code, as the case may be, in accordance with the provisions of the Code: Provided also that where a petition relating to winding up of a company is not transferred to the Tribunal under this rule and remains in the High Court and where there is another petition under clause (e) of section 433 of the Act for winding up against the same company pending as on 15th December, 2016, such other petition shall not be transferred to the Tribunal, even if the petition has not been served on the respondent." (j) In support of his submissions, Sri Saran has relied upon paragraphs-57 and 58 of the judgment of this court in the case of Reserve Bank of India A Statutory Boday vs. M/s. Sahara India Financial Corporation Ltd. (supra). Facts 8. The petitioners filed a writ petition before Hon'ble Supreme Court under Article 32 of the Constitution of India bringing to its notice that how various consumers, distributors and dealers of the respondent no.12 i.e. M/s. S.B. Petroleum Ltd., spread in nine states, namely, Madhya Pradesh, Maharashtra, Karnataka, Uttar Pradesh, Haryana, Rajasthana, Bihar, Delhi and Punjab were taken for a ride and cheated by collection of crores of rupees and syphoned it by acquiring personal 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1081 properties. The matter was heard by Hon'ble Supreme Court for several years and ultimately the writ petition was disposed of by order dated 13.01.2003 as under :- "This writ petition under Article 32 of the Constitution of India was filed in public interest, approximately six years earlier, bringing to the notice of this Court how various consumers, distributors and dealers of respondent No. 12 -M/s. S.B. Petroleum Ltd. spread in nine States, namely Madhya Pradesh, Maharashtra, Karnataka, Uttar Pradesh, Haryana, Rajasthan, Bihar, Delhi, Punjab were taken for a ride and cheated by collection of crores of rupees. According to the petitioners crores of rupees were syphoned and personal properties acquired. Various orders were passed by this Court from time to time against respondent. 12Company and its Managing Director and his family members and also other Directors. Directions were also issued to various authorities noticing a total inaction on the part of the authorities. Some of the orders passed to which reference can be made in this regard are the orders dated 20th October and 17th November, 1997, 6th February and 20th March, 1998 and 3rd December, 2001. Various bank accounts and properties have been attached. The matter was also investigated by CBI and the Economic Offences Wing (CID) U.P. We have been informed by Shri Altaf Ahmad, learned Additional Solicitor General that 22 chargesheets were filed on 24th December, 1999 before Additional Chief Judicial Magistrate III, Lucknow. Learned Additional Solicitor General submits that primarily on account of the noncooperation of the accused charges have not been framed. We, however, refrain from expressing any opinion except observing that all concerned are directed to cooperate in the expeditious disposal of the cases that have been initiated as a result of directions issued in this matter. Having regard to the facts and circumstances of the case, we do not think it possible for this Court to either examine from time to time the progress of the criminal cases so as to ensure its expeditious disposal and to also go into the factual details of a large number of consumers and their rights, and also the rights, if any, of dealers/distributors. We may note that though large sums have been refunded, according to respondent no.12, to the consumers but it seems that still there may be large number of consumers to get the refunds. We feel it would be appropriate, if the matter is transferred to the High Court in terms of the prayer made in I.A.No.27/2002 filed by learned Amicus Curiae. Accordingly, we issue the following directions: a) All the case papers of this matter be transferred to High Court of Allahabad with a request to Hon'ble Chief Justice of Allahabad High Court to constitute a special bench either at Allahabad or at Lucknow to deal with the matter. The special bench will appoint a retired Judge of the High Court as a Special Commissioner and decide about his remuneration/ expenses etc. The Special Commissioner will take charge of all the assets including the bank accounts of respondent no.12. b) The bank accounts disclosed in the affidavit of Dr.KPD Shastri shall remain frozen till further orders. c) All the concerned banks are directed to furnish details of operations of the accounts since 1993 to the Special Commissioner. 1082 INDIAN LAW REPORTS ALLAHABAD SERIES d) The Special Commissioner so appointed would take charge of the following bank accounts:- 1. Bank of Baroda, Aliganj Branch, Lucknow, Account No.Current A/c 391. 2. State Bank of India, Main Branch, Hajrat Ganj, Lucknow. 3. Syndicate Bank, Hajrat Ganj, Lucknow. 4. Oriental Bank of Commerce, Hajrat Ganj,Lucknow. 5. ABN Amro Bank, New Delhi. 6. State Bank of Indore, Hajrat Ganj, Current A/c No.207. 7. Bank of Baroda, Nishant Ganj, Lucknow A/c No.1673 8. Bank of Baroda A/c No.1730 9. Bank of Baroda, Gore Gaon, Bombay A/c No.3284 10. Bank of Baroda, Gandhi Dham, Gujrat A/c No.1366 11. Bank of Baroda, Gandhi Dham, Gujarat No.1465 12. Bank of Baroda, Asharami Ahmedabad, Gujarat A/c No.30157 13. Bank of Baroda, Aliganj, Lucknow, Krishna International A/c No.316 14. Bank of Baroda, Aliganj, Lucknow, SB International Oil & Energy No.610 15. Bank of Baroda, Aliganj, Lucknow, SB Petroleum, Port Terminal A/c No.617 16. Bank of Baroda, Aliganj, Lucknow, Saushail Enterprises A/c No.618 17. Bank of Baroda, Aliganj, Lucknow, SBLPG Bottling, No.640 18. Bank of Baroda, Aliganj, Lucknow A/c No.493 19. Bank of Baroda, Aliganj, Lucknow. A/c No.6343 20. Bank of Baroda, Nishatganj, Lucknow, Shell Petroleum A/c No.1606 21. Bank of Baroda, Nishatganj, Lucknow, SB Petroleum Port Terminal A/c No.1692 22. Bank of Baroda, Nishatganj, Lucknow, SB International Oil & Energy A/c No.1623 23. Bank of Baroda, Nishatganj, Lucknow, Saushil Enterprises A/c No.1640 24. State Bank of India, Main Branch, Hajrat Ganj, Lucknow, Saurpika Investment & Properties A/c No.CC51 25. Federal Bank, 29, Vidhan Sabha Marg, Lucknow, Saushil Enterprises A/c No.1226 26. Federal Bank, 29, Vidhan Sabha Marg, Lucknow, Krishna Exim Pvt.Ltd. A/c No.1229 27. Fedral Bank, 29, Vidhan Sabha Marg, Lucknow, SB International Oil & Energy A/c No.1225 28. Bank of Baroda Gandhi Dham, SB Inter Oil & Energy Ltd. A/c No.1515 e) The Special Commissioner will also take charge of the following properties:- 1. Land at Mohanlal Ganj, Meerut, Mainpuri, Mathura (sale deed in favour of M/s SB Petroleum free from all encumbrances: 12.73 lacs) 2. Bottling plant at Mohanlal Ganj, Lucknow (fully owned by respondent no.12 fre from all encumberances: 168.85 lacs) 3. SKO storage at Mohanlal Ganj, Lucknow (fully owned by respondent no.12, free from all encumbrances: 116.86 lacs) 4. Kerosene and LPG port storage facility project at Pipavav Port, Gujarat (lease hold right in favour of respondent no.12: 122.73 lacs) 5. Vehicle (staff cars & scooters: 12.00 lacs) 6. Furniture & Fixtures (27.03 lacs) 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1083 7. Electrical Equipments (0.92 lacs) 8. Electrical installations (0.60 lacs) 9. Computers (2.52 lacs) 10. Stock of lubricating oil (30.25 lacs) 11. LP Gas (3.25 lacs) 12. Cylinders and regulators (4.90 lacs) 13. Sundry debtors (1.67 lacs) 14. Other current assets (0.37 lacs) 15. Loans and advances (87.08 lacs) 16. Eight bighas of Agricultural land situated at Mohan Lal Ganj, Lucknow. 17. Office Complex at 20A/3, Gokhle Marg, Lucknow which she acquired in the year 1983 18. B-65, Sec.C, Mahanagar, Residential house which she acquired in the year 1986 19. A flat at Wazir Hasan Road, Lucknow. 20. Two acres of land situated in Gata No.988-A, Mauza-Zara Mai, Tehsil and Distt. Mainpuri, UP 21. Two acres of land situated in Gata No.112, Vill.Bhagwanpur, Pargana-Sarawa, Tehsil and Distt. Meerut, UP 22. Two acres of land situated in Khasra No.53, Min-Jumla, Rakba-0,737, Mouza-Mahuwan, Tehsil and Distt. Mathura, UP at Agra-Mathura Road. 23. Twenty Acres of land, Vill.Rampura-II, Pipavav port, Post-Uchaiya, Tehsil-Rajula, Distt. Amreli. 24. RECLAIM OF LOAN/ADVANCE TO: M/s Kashinath Kailashnath Jewellers Lucknow UP Rs.25.00 lacs Refund of Security Deposit for land at Pipavav Port for LPG & SKO Storage Rs.7.00 lacs Sale of land at Mathura, Meerut & Mainpuri Rs.15.00 lacs 25. Investments made at Mohanlal Ganj, Lucknow, UP, such as:- LPG Bottling Plant Rs.169.00 lac approx. SKO Storage Plant Rs.130.00 lacs approx. f) The Special Commissioner would also take charge of the following FDRs:- 3rd August 1993 20 Lacs 18th December, 1993 15 lacs 5th May, 1994 10 lacs 1st June, 1994 7.5 lacs 5th October, 1994 7.5 lacs 15 lacs 10 lacs 7th September, 1994 33,70049/- September, 1994 25 lacs October 1994 7.5 lacs January, 1995 7,63,291 12th July, 1994 -Two FDRs -7.5 lacs each 11th September, 1994 15 lacs 5th October, 1994 7.5 lacs g) The Special Commissioner would insert two advertisements in the Times of India, Indian Express, Dainik Jagran or 1084 INDIAN LAW REPORTS ALLAHABAD SERIES such other important newspapers having large circulation in the concerned States announcing his appointment and inviting all concerned who have deposited their money with the dealers/distributors of S.B.Petroleum Ltd. and also the concerned dealers/distributors to file their claims before the Special Commissioner within a time stipulated in the said publication. h) The Special Commissioner shall formulate a scheme whereby the consumers are repaid their deposits without insisting their personal presence before the Commissioner. The Special Commissioner would, of course, ensure that the amount reaches the right person. i) In so far as the dealers/distributors are concerned, they may file their claims before the Special Commissioner. Respondent no.12- Company claims to have serious disputes with the dealers/distributors. According to the company - respondent No. 12 they are not entitled to claim any refund. It would be open to the Company and also to all dealers/distributors to take such pleas as are available to them in law before the Special Commissioner. The Special Commissioner will go into the respective pleas of the Company and dealers/distributors and adjudicate upon their claims whereafter orders for refund, if any, or other appropriate orders will be passed by him. j) The Company and its Managing Director Mr.VK Tiwari and all other concerned are directed to furnish all books of accounts/all deeds of the properties of the Company and alsoof Mr.VK Tiwari and all his family members and the Directors of the Company as are attached under the orders of this Court to the Special Commissioner within 15 days of the appointment of the Special Commissioner. In respect of properties 20A/3, Gokhale Marg, Lucknow and B-65, Sector 'C' Mahanagar, Lucknow it has been claimed that these properties were acquired in 1981 and 1987 respectively by Smt.Abha Tiwari w/o VK Tiwari even before the formation of the Company and thus the plea is that these properties cannot be utilised for the alleged claims of any person against the Company. On the other hand, the claimants may dispute this factual statement and may also contend that for various reasons it would be permissible to lay hand to these properties as well. We have only noticed in brief the pleas which may be raised before the Special Commissioner. We however, express no opinion on any of the pleas . The Special Commissioner would examine the respective submissions in respect of these two properties and decide the matter in accordance with law as also the matters in respect of which mention has been made by his chartered accountant. k) The CBI and Economic Offences Wing, CID (UP) are directed to report the progress of the case before the special bench at the High Court. l) It would be open to the Special Commissioner to to approach the special bench of the High Court for any clarification/directions/orders. m) Some amounts are lying in fixed deposites pursuant to the orders passed by this Court from time to time. Those FDRs be transmitted to the High Court. The Special Commissioner, as and when necessary, may seek directions from the High Court in respect of the amounts in those FDRs. Before concluding we place on record this Court's deep appreciation for the services rendered by the amicus curiae Mr. AK Ganguly, Senior Advocate and Ms. Rachna Srivastava, Advocate. 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1085 The writ petition and all applications are disposed of in the above terms." 9. Vide direction No.(a) of the aforequoted order, Hon'ble Supreme Court transferred case papers of the aforesaid Writ Petition (c) No.758 of 1996 to this Court with a request to Hon'ble Chief Justice of Allahabad High Court to constitute a Special Bench either at Allahabad or at Lucknow Bench to deal with the matter. The Special Bench will appoint a retired judge of the High Court as a Commissioner and decide about his remuneration/expenses etc. The Special Commissioner will take charge of all the assets including the Bank accounts of the respondent no.12. Pursuant to the aforesaid directions the Public Interest Litigation (PIL) No.12324 of 2003 (Jagriti Upbhogta Kalyan Parishad Thru Its Joint Secretary Vs. Union Of India And Others) was registered in this Court. A Special Commissioner was also appointed who carried out tremendous job before the assets may be sold and the proceeds may be distributed amongst the claimants/petitioners, the aforesaid PIL was disposed of by a detailed order dated 28.05.2019. The directions given by the Division Bench in the aforesaid PIL No.12324 of 2003 while disposing of the aforesaid PIL no.12324 of 2003 by order dated 28.05.2019, are as under :- "(I) CBI Court shall proceed to decide the cases pending before it ensuring hearing on day to day basis. It should endeavor to complete trial in all these cases expeditiously since sufficient time has already elapsed. Now it is expedient that proceedings should be completed within two years, but if for any good or valid reason, it fails to do so, it may submit a progress report to the Court seeking further time. (II) Since it is an old matter, Registry of this Court now shall register a Winding Up Company Petition and place this matter before Company Judge so that Court may proceed in the matter by considering claims of the parties The property, movable or immovable, in the custody of District Administration or the Registrar General etc., shall be taken in custody by Company Judge or if so directed, shall be handed over to Official Liquidator for maintenance of property and dealing with the same in the manner as directed by Company Judge in the winding up petition. (III) Till further order is passed by Company Judge, Registrar General is directed to keep the entire money, as detailed in para 38 of this order, in a fixed deposit and thereafter it shall be dealt with in the manner as directed by Company Judge. (IV) Claim of M/s Pushpa Petroleum is said to be founded on a compromise between the said Firm and M/s SBPL dated 04.04.2005. The Company Judge shall look into its genuineness and pass appropriate order. 10. Pursuant to the direction of the Division Bench of this Court in para 47(II)/(III)/(IV) of the order dated 28.05.2019 in the aforesaid PIL No.12324 of 2003 the present petition has been registered and listed before me as Company Judge nominated by Hon'ble the Chief Justice by order dated 17.06.2020 on administrative side. This is how the present company petition has came up before this court for consideration. 11. However, the present case could not be proceeded to reach the logical ends on account of further obstructions created by the applicants/respondent no.12 by making successive application being Civil Misc. Application No.48 dated 09.09.2019, Civil 1086 INDIAN LAW REPORTS ALLAHABAD SERIES Misc. Application No. 49 dated 30.11.2019 and Civil Misc. Application No.52 dated 30.07.2020 which are being hereby decided. Discussion and Findings 12. I have carefully considered the submissions of learned counsels for the parties and perused the records of the case. 13. It is undisputed that the entire proceedings against the applicants/respondent no.12 and their properties took place pursuant to the directions of Hon'ble Supreme Court vide order dated 13.01.2003 in Writ Petition (c) No.752 of 1996, filed by the petitioner herein under Article 32 of the Constitution of India. The direction given by the Hon'ble Supreme Court in the order dated 13.01.2003, has already been reproduced above. It is also admitted to the applicants/respondent no.12 that the Special Commissioner, in terms of the aforequoted order of Hon'ble Supreme Court and pursuant to the orders passed by the High Court from time to time in the aforesaid PIL no.12324 of 2003, took effective steps and did the needful to adjudicate the claim. 14. Now, mainly the process of selling the assets and distribution of proceeds amongst the claimants in adjudication of their claims, is left. It appears that under the facts and circumstances of the case the Division Bench thought it fit to provide by order dated 28.05.2019 that the PIL may now be converted and registered as a winding up company petition so that the matter may reach to its logical ends. Thus, the present case is not winding up proceedings under the Companies Act, 1956 but it is a petition registered under the orders of the Division Bench dated 28.05.2019 in PIL No.12324 of 2003, which itself was the result of order of Hon'ble Supreme Court dated 13.01.2003, passed under Article 32 of the Constitution of India in Writ Petition (c) No.758 of 1996. 15. It has been admitted by learned counsel for the applicant/respondent no.12 that the aforesaid PIL No.12324 of 2003 was converted into the present company petition by order dated 28.05.2019 on "no objection" filed by all the contesting parties including the petitioners and the applicants/respondent no.12. Thus, the aforesaid PIL was converted into the present petition with the consent of the applicants/ respondent no.12. Consequently, the respondents can not raise objection that the present company petition can not be adjudicated by the High Court. Without prejudice to the above, it is further relevant to mention that neither the applications presently under consideration filed by the applicants/respondent no.12 have disclosed any reason for transfer of the present petition to NCLT nor learned counsel for the applicants/respondent no.12 has raised any contention disclosing reasons for transfer, except that the present petition deserves to be transferred to the NCLT under the Transfer Rules, 2016. There is no doubt that the second proviso to Section 434(1)(c) provides that any party to winding up proceedings pending before any Court immediately before the commencement of IBC, may file an application for transfer of such proceedings and the Court may transfer all such proceedings to the NCLT. However, the said proviso does not mandate that the proceedings would automatically stands transferred rather it leaves the decision with the Court where the winding up 6 All. Jagriti Upbhogta Kalyan Parishad, M.P. & Ors. Vs. Union of India & Ors. 1087 proceedings are pending, to transfer the same or not to transfer the same. The applications of the applicants/respondent no.12 do not even disclose specifically as to why power to transfer the winding up petition should be exercised by this Court and the winding up petition should be transferred, particularly when after journey of about 25 years the matter is now about to reach to its logical end. Similar is the view taken by Lucknow Bench of this Court in the case of Reserve Bank of India a Statutory Body Vs. Sahara India Financial Corporation Ltd. 2019 3 ADJ 540(LB)(para 43,51,53,56,57 & 58). The judgment of this Court in the case of Saumya Co-operative Housing Society Vs. State of U.P., 2019 (143) RD relied by learned counsel for the applicants/respondent no.12 laying down the principle that jurisdiction can not be conferred on a Court by consent, is distinguishable on facts of the present case. Reasons in this regard have already been stated in foregoing paragraphs. It would be relevant to mention at the cost of repetition that the present petition has come into existence on account of the orders of Hon'ble Supreme Court dated 13.01.2003 in Writ Petition (c) No.758 of 1996 followed by order of the Division Bench of this Court dated 28.05.2019 in PIL No.12324 of 2003. 16.