TMI Blog2017 (6) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... OSE, J. ORDER The Court : Main matter before this Court is an application by which a consent order passed in Company Petition No.575 of 1982 on 25th March, 1983 and 27th April, 1983 are sought to be recalled. C.P. 575 of 1982 is a winding up application instituted by Bennett Coleman Co. Ltd. The applicants in the application being CA 715 of 2015 are Angelo Brothers Ltd. and Hungerford Investment Trust Ltd. seeking recall of the consent order. An application has been filed by Bennet Coleman Co. Ltd. for dismissal of this recall application, which has been registered as CA 187 of 2016. This matter was scheduled for hearing on 11th January, 2017. On that date Mr. Kar, learned senior counsel appearing for Bennett Coleman Co. Ltd. brought to my notice a notification bearing No. G.S.R.1119(E) dated 7th December, 2016 and a Statutory Order being SO3676(E) dated 7th December, 2016. The term G.S.R. stands for General Statutory Rule and the aforesaid notification was issued by the Central Government in exercise of powers conferred under sub-sections (1) and (2) to Section 434 of the Companies Act, 2013. The Statutory Order was passed in exercise of power under Section 470(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay debts pending before a High Court, and where the petition has not been served on the respondent as required 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 Act, exercising territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of the Code, as the case may be, and dealt with in accordance with Part II of the Code: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition under sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate. (2) All cases where opinion has been forwarded by Board for Industrial and Financial Reconstruction, for winding up of a company to a High Court and where no appeal is pending, the proceedings for winding up initiated under the Act, pursuant to section 20 of the Sick Industrial Companies (Special P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act with High Courts on all cases other than winding-up as on 15th December, 2016 shall stand transferred to the Benches of the Tribunals exercising respective territorial jurisdiction and (ii) all cases of winding up under the 1956 Act which are pending before the High Courts as on 15th December, 2016 and wherein petitions have not been served to the respondents as per rule 26 of Companies (Court) Rules, 1959 shall be transferred to Tribunal, and all remaining cases of winding up pending on that date would continue with the respective High Courts; And, whereas, difficulties have arisen regarding continuation of provisions of the 1956 Act for (i) those proceedings relating to cases other than winding-up that are reserved for orders for allowing or otherwise and (ii) those winding-up cases which would not be transferred to Tribunal and be proceeded with by High Courts on account of commencement of the corresponding provisions under the 2013 Act or under the Code; And, whereas, difficulties have also arisen regarding transfer or proceedings relating to cases other than winding-up where hearings have been completed and only pronouncement of order is pending or is reserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the company to pay its debts pending before a High Court. So far as the character of the subject winding up petition is concerned, it fits this description. But on a plain reading of the aforesaid provision, I find that though the starting sentence refers to all pending petitions relating to winding up on the ground of inability to pay debt as a condition for transfer to the NCLT, it is a conjunctive sentence, the later part of which specifies or refers to a situation where the petition has not been served on the respondent as required under Rule 26 of the Companies (Court) Rules, 1959. In the event the second part of the sentence in clause 5 is construed as a mere surplusage, then petitions involved in this proceeding ought to stand transferred. But, in my opinion, the conjunction and , employed in the aforesaid provision, qualifies the petitions which are required to be transferred. Lawmakers do not employ words in statute as surplusage. In my opinion, proper construction of this provision would be this. In the first part of clause 5, there is general description of the petition which is pending before the High Court, and in the second part after the punctuation comma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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