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2017 (5) TMI 315 - HC - Insolvency and BankruptcyProceedings transferred to the NCLT, Mumbai - whether in the present proceedings the conditions for not transferring set out in the proviso to Rule 3 of the said Company (Transfer of Pending proceedings) Rule, 2016 are satisfied and thus are not required to be transferred to NCLT? - Held that:- The legislature, accordingly, inserted proviso (ii) under Section 434(1)(c) of the Companies Act, 2013. Insofar as the proceedings other than the winding up are concerned, it is clear beyond reasonable doubt that where hearings have been completed and only pronouncement of order is pending or reserved with a view to avoid any delay and prejudice to the rights of the parties to the proceedings who are likely to be affected by such transfer at such stage, the legislation has provided such safeguard not to transfer such proceedings at such stage to the NCLT. Admittedly in this case the hearing of this petition was not concluded and thus in view of Section 434 (1)(c) read with proviso thereto, read with the Companies (Removal of Difficulties) Fourth Order, 2016, read with the Companies (Transfer of Pending Proceedings) Rules, 2016, these proceedings stood transferred to the NCLT with effect from 15th December, 2016. In my view the interpretation of the proviso to Rule 3 as sought to be canvased by the learned Senior Counsel for the petitioner thus being contrary to aforesaid provisions can not be accepted. Insofar as the winding up proceedings are concerned, the pending proceedings as on 15 December, 2016 in High Court shall stand transferred to the NCLT or not depend upon the effect of service under Rule 26 of the Companies (Court) Rules, 1959 or not whereas the criteria for transfer of all other proceedings including proceedings under Section 560 of the Companies Act, 1956 is different and transfer thereof is based on and is depending upon the condition whether hearing in such matters is concluded and the proceedings are reserved for orders for allowing or not. In my view, there is no discretion left in the hands of the Court to not to transfer such proceedings to the NCLT on the ground that it would be more convenient or that in the interest of justice the proceedings shall be heard by this Court, though the hearing is not concluded and proceedings are not reserved for order for allowing or not. Thus the present proceedings stand transferred to the NCLT, Mumbai. The Tribunal shall proceed with the matter from the stage before its transfer. Since the argument were not concluded before this Court, the parties may advance their argument before the NCLT.
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