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TMI Blog2019 (4) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent as required under Rule 26 of the Companies (Court) Rules, 1959 . A careful reading of Rule 26 shows that it is mandatory to serve a copy of the petition along with the notice of the petition with the exception being an order of the Court to the contrary - In the present case, it is an admitted position that no notice was actually issued in the winding up petition to the Respondent. There was no occasion, therefore, for service of notice in Form-6 on the Respondent. The Appellant s contention that several hearings did take place before the learned Company Judge and therefore that in itself would tantamount to notice to the Respondent does not answer the mandatory requirement of Rule 26 read with Rule 27 viz., that there a formal notice has to be issued (even if it is called a pre-admission notice ) on the Respondent and such notice has to be served upon the Respondent in Form-6. Appeal dismissed - decided against appellant. - CO.APP. 7/2019 && CM 16517/2019 (stay) - - - Dated:- 9-4-2019 - S. MURALIDHAR AND I.S. MEHTA JJ. Appellant Through: Mr. Sandeep P. Agarwal, Senior Advocate with Mr Rajesh Pathak, Advocates. Respondent Through: None. O R D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Senior Advocate appearing for the Respondent, stated that he has been instructed to appear in the matter after his client noticed the matter appearing in the cause list . Later in the order, the learned Company Judge recorded the statement of the Senior Advocate on instructions that his client shall file an affidavit setting down willingness of the respondent-company to also abide by all the terms and conditions of the agreement between the parties,... . The learned Single Judge then recorded as under It is made clear that in view of the peculiar circumstances of this case, no notice to show cause as to why the respondent-company be not wound up is issued to the respondent at this stage. 6. The winding up petition was listed on 3rd February, 2017 on which date the learned Single Judge directed the Respondent to file an affidavit, indicating the time by which the Respondent would hand over possession of the plot in question to the Appellant. Pursuant thereto, the Respondent filed an affidavit dated 12th July, 2017 stating that it would hand over possession of the plot booked by the Appellant within one a half years from the date of approval of the zonal plan by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the proceedings relating to the winding up of the companies shall be transferred to the NCLT that are at a stage that may be prescribed by the Central Government . A further amendment took place to Section 434 with effect from 17th August, 2018 providing for filing of an application for transfer of the proceedings. 10. Pursuant to the above amendments brought about by the IBC, the 2016 Rules, were made. Rule 5 thereof provided for transfer of pending proceedings of winding up on the ground of inability to pay the debts . Rule 5 (1) provided that a petition seeking winding up under Section 433 (e) of the Companies Act, would stand transferred to the NCLT where the petition has not been served on the Respondent as required under Rule 26 of the Companies (Court) Rules, 1959 . A further notification was issued on 29th June, 2017 substituting Rule 5 (5), the relevant portion of which reads as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction Co. Ltd. (supra) held as under: 16. We are of the view that Rules 26 and 27 clearly refer to a pre-admission scenario as is clear from a plain reading of Rules 26 and 27, which make it clear that the notice contained in Form No. 6 has to be served in not less than 14 days before the date of hearing. Hence, the expression was admitted in Form No. 6 only means that notice has been issued in the winding up petition which is then fixed for hearing before the Company Judge on a certain day. Thus, the Madras High Court view is plainly incorrect whereas the Bombay High Court view is correct in law. 15. Mr. Agarwal submitted that the Supreme Court in Forech India Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. (supra) should be understood as having approved even the following observations of the Bombay High Court in M/s Ashok Commercial Enterprises v. Parekh Aluminax Ltd. (supra). 55. By an order dated 17th January 2017, this Court clarified the said order dated 23rd December 2016 that sine qua non for transfer of a winding up Petition to NCLT under the Companies (Transfer of Pending Proceedings) Rules, 2016, is non-service of a pending Petition. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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