Aneja Constructions (India) Pvt. Ltd. v. M/s Kanti Bijlee Utpadan Nigam Ltd. & Ors.

What happened

Aneja Constructions filed a suit in 2015 (Title Suit No. 330 of 2015, transferred on 16 March 2019 and registered as Commercial Case No. 01 of 2019) against Kanti Bijlee Utpadan Nigam Limited (now NTPC Limited), defendant 1, and Tecpro Systems Limited, defendant 4. It said that it was an approved sub-contractor of Tecpro for civil works in the coal handling package at the Muzaffarpur thermal power project, Stage II, that Tecpro's contract was terminated by defendant 1, and that its dues and machinery were withheld. It sought specific performance of the contract, release of the outstanding amount and items, and an injunction. During the suit Tecpro was admitted to insolvency proceedings before the National Company Law Tribunal, New Delhi, the approved resolution plan failed, and by an order of 16 January 2020 the Tribunal started its liquidation. This was not brought to the notice of the Principal District Judge-cum-Commercial Court, Muzaffarpur, which decided the suit on its merits on 16 December 2025. The plaintiff's appeal was filed with a delay of 27 days, which was condoned as the respondents did not oppose it and relying on State of Maharashtra v. Borse Bros. Engineers & Contractors, and its own memorandum of appeal said that Tecpro was under liquidation and had been struck off. The plaintiff said that the suit could have proceeded against defendant 1 alone.

Questions before the court

• Could the Commercial Court proceed with and decide the suit without the NCLT's leave after the winding-up order against defendant 4?

Why the court ruled this way

The Court recorded that the liquidation order of 16 January 2020 was passed during the pendency of the suit, and that the Commercial Court proceeded without knowing of it, and defendant 4 was not represented because no notice had been served on the liquidator (paragraphs 15–19 and 24). Reading sections 278 and 279 of the Companies Act, 2013 with section 33(5) of the Insolvency and Bankruptcy Code, 2016, once a winding-up order is passed no suit or legal proceeding pending against the company can be proceeded with except with the leave of the Tribunal and on its terms (paragraphs 20–23). The plaintiff, an agent of defendant 4 who prayed for reliefs against defendant 1 and defendant 4 jointly, could not contend that the suit could proceed against defendant 1 alone, and could not maintain the suit or the appeal by deleting defendant 4 (paragraphs 25–27).

Controlling point

A suit pending against a company at the time of a winding-up or liquidation order cannot be proceeded with without the leave of the Tribunal under section 279, and a judgment given without addressing that bar must be set aside.

Order and next steps

The Court set aside the judgment of 16 December 2025 of the Principal District Judge-cum-Commercial Court, Muzaffarpur in Commercial Case No. 01 of 2019 and remitted the matter to the Commercial Court, which may consider the suit afresh if the NCLT, New Delhi grants the plaintiff leave to proceed. The Court made no observation on the Official Liquidator's suggestion that the Tribunal might consider the leave application, leaving the parties free to make submissions before the appropriate forums, and allowed the appeal to that extent.

Practical implications

A creditor or sub-contractor with a suit pending against a company that goes into liquidation should check the stage of the insolvency proceedings and apply to the NCLT for leave under section 279, and all parties should inform the court of the liquidation order.

Limits of this ruling

• The Court did not decide the merits of the suit or whether the NCLT will grant leave, and left the leave application open for the forums concerned.