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2017 (6) TMI 655 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHIApplicability of provisions of Section 433 of the Companies Act, 1956 or the provisions of Insolvency and Bankruptcy Code, 2016 - insolvency resolution process triggering - Held that:- The new legislation cannot be presumed to apply retrospectively if it affects the substantive or vested rights of the parties unless it is expressly provided or it becomes evident from necessary intendment. In case the new legislation is procedural then it is presumed to operate retrospectively. In the present case, the petitioner has filed the company petition before the Hon'ble High Court of Delhi on 16.10.2016 and therefore, it is claimed that the petition continued to be one for winding up under Section 433 (e) of the Companies Act, 1956 as all the rights of the petitioner are deemed to have crystalized and vested on the aforesaid date. We are afraid that no such interpretation of general application as sought to be claimed on behalf of the petitioner is acceptable because there is no substantive or vested right with the petitioner to seek winding up of the respondent company till the time the process of winding up has been initiated. The aforesaid aspect has been taken care of by the Transfer Rules which provide that all those cases where notices have been served were to be retained by the Hon'ble High Court and in rest of the cases where notices could not be served were to be transferred to this Tribunal. Moreover, the nature of the remedy in sum and substance continues to be available in the form of Insolvency and Bankruptcy which may eventually results into liquidation of the respondent company. Thus the result is similar to the one which would be achieved in case of winding up. It needs to be further added that right becomes a vested right only when its acquired and is enjoyed by a litigant. Merely by filing a petition no right is acquired leave aside the enjoyment of such a right. Therefore, we are unable to persuade ourselves to accept first contention raised by the petitioner. In the absence of demand notice under Section 8 (1) of the Code, the petitioner could not have approached this Tribunal for initiation of insolvency resolution process against the respondent company. In the present case, there are many other defects pointed out by the learned counsel for the respondent. Therefore, we find that the present application is incomplete as the same is liable to be dismissed.
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