9911796707
TMI Blog2019 (4) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... ober, 2012 booked a residential plot and deposited a sum of Rs. 28,82,061/- by a cheque dated 26th October, 2012, drawn in favour of the Respondent. Further payments were made to the Respondent towards the plot and as on 23rd August, 2013, the Appellant had paid Rs. 1,58,20,012/-, which was more than 50% of the price of the plot. According to the Appellant, it was subsequently learnt that the size of the plot allotted to him had been reduced by 20% leading the Appellant to ask the Respondent to return the whole amount together with interest @ 12% per annum, by a letter dated 2nd August, 2014. According to the Appellant, the Respondent kept assuring about the return of the funds. The Appellant was stated to have then learnt of a judgment dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sandeep P. Agarwal, learned Senior Counsel appearing for the Appellant, relied upon the judgment of the learned Single Judge of the Bombay High Court dated 11th April, 2017 in Company Petition No.136/2014 (M/s Ashok Commercial Enterprises v. Parekh Aluminax Ltd.), in which it was inter alia held that even service affected by a Petitioner on its own upon the Respondent was equivalent to service under Rule 26, and in such event, the petition need not be transferred to the NCLT. According to Mr Agarwal, this view of the Bombay High Court was upheld by the Supreme Court in Forech India Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. (supra). He also placed reliance of another judgment of the Bombay High Court dated 23rd December, 2016 in Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 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." 11. Rules 26 and 27 of the 1959 Rules read as under: "26. Service of petition -Every petition shall {e served on the respondent, if any, named in the petition and on such other persons as the Act or these rules may require or as the Judge or the Registrar may direct. Unless otherwise ordered, a copy of the petition shall be served along with the notice of the petition. 27. Notice of petition and time of service -Notice of every petition required to be served upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. 14. Having paraphrased the ratio of the judgment of the Bombay High Court and Madras High Court as above, the Supreme Court in Forech India Ltd. v. Edelweiss Assets Reconstruction 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 Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfy the requirement of Rule 26 of the 1959 Rules. 17. 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. This is indicated by the opening words "unless otherwise ordered". In other words, the mandatory requirement is for issuance of a notice to the Respondent by the Court and service of the notice on the Respondent in Form-6. If this procedure is followed then the petition can be retained in the High Court. 18. 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 Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
