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TMI Blog2018 (1) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... admission of a winding up petition is dealtwith the Rule 96 of the Companies (Court)Rules 1959. Rule 96 also provides foran eventualityof service of notice to be given to the company before directions as to the advertisement of the petition. ClearlyRule 26 does not deal only with situationswhere copy is served on the respondent after admission of the winding up petition. Hence, the present petition is liable to be heard by this Court. The learned counsel for the respondent seeks some time to file surrejoinder in view of the additional documents filed by the petitioner along with petition. Needful be done in three weeks. List on 16.04.2018. - CO.PET. 123/2016 - - - Dated:- 9-1-2018 - Mr. Jayant Nathjayant Nath, J. Ms.Pritha Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. EL Forge Ltd. being CP Nos.14/2015, 239/2015, 242/2015, 94/2016 and 364/2016dated 11.1.2017. 4.Rule 5 of 2016 Rules reads as follows: [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 Benchof 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 IIof the Code: ...... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N NO. ....... OF ....... In the matter of Companies Act, 1956; AndIn the matter___________________ (Full title as per proceeding) To, Name and address of the Respondent Company. TAKE NOTICE THAT Petition under Section ........... of the Companies Act, 1956 for winding-up of the abovenamed Company presented by ............. the Petitioner on --/--/200 is admitted pursuant to Order dated --/--/200 and the same is now fixed for hearing before the Company Judge on --/--/200 at 11:00 O'Clock in the forenoon or soon thereafter. If you desire to support or to oppose the said Petition at the hearing, you should give notice thereof in writing to the Advocates for the Petitioners mentioned below so as to reach the Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only if the Act or Rules may require or if the Judge or Registrar may direct and that in default, every service of the petition must be accompanied by service of the notice of the petition. He then follows it up with his next submission that such notice of the petition is required to be in Form No. 6, which clearly provides for a notice post-admission. He finally sums it up by submitting that every service of the petition under Rule 26 is, therefore, necessarily a post-admission service. There is a distinct fallacy in this argument. First of all, if a petition had to be served on the respondent as well as other persons only as and if the Act or the Rules may require or the Judge or the Registrar may direct,there was no need to make any sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition. Rules 27 and 28, on the other hand, make it clear that they together form the requirement of service of the notice of the petition on the respondent company after the petition is admitted and provide for the time and manner of such service. Rule 29,on the other hand, fixes the responsibility of any service under the Rules or directions of the court or the Registrar on the petitioner. The scheme of these four rules, thus, suggests that whereas service of the petition is mandatory on the respondent and, if the Act or the Rules provide or the Judge or the Registrar directs, on such other person/s, whereas notice of the petition on the respondent is obligatory only in the event of admission of the petition. So also, other persons are en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent under Rule 26 have to be necessarily transferred. 9.In my opinion, the judgment of the Bombay High Court in West Hills Realty Private Ltd. and Ors. vs. Neelkamal Realtors Tower Pvt. Ltd., gives thecorrect position. As rightly noted by the Bombay High Court, Rule 26 of the Companies (Court) Rules,1959 deals with Service of petition whereas Rule 27 deals with Notice of petition. There is nothing in Rule 26 to show that the service of the petition is to be effected only when the petition is admitted. In fact, admission of a winding up petition is dealtwith the Rule 96 of the Companies (Court)Rules1959. The said Rule 96 reads as follows:- 96. Admission of petition and directions as to advertisement Upon the filing of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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