TMI Blog2019 (2) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. Edelweiss Assets Reconstruction Co.Ltd. (2019 (1) TMI 1442 - SUPREME COURT) has held that where no notice under Rule 26 of the Companies (Court) Rules is issued the petition has to be transferred to NCLT. This court would have no jurisdiction to retain the present matter in view section 434 read with Rule 5 of the Companies(Transfer of Pending Proceedings) Rules, 2016. It is directed accordingly. The Registry may transfer the present petition to NCLT. - CO.PET. No. 315/2015 - - - Dated:- 8-2-2019 - MR. JAYANT NATH J. Petitioner Through: Mr. Sandeep P.Agarwal, Sr. Adv. with Mr. Rajesh Pathak, Adv. Respondent Through: Mr. Devesh Bhati and Mr. Satyam Dwivedi, Advs. JAYANT NATH, J. 1. By this judgment, I will decide the preliminary objection raised by the respondent who has contended that as notice has not been issued in this petition, this court would not have jurisdiction to try the matter and the same be transferred to NCLT. 2. On 22.02.2018, this court had noted the various contentions regarding the contention of the learned counsel for the parties as follows: Learned counsel for the respondent relies upon the Notification dated 7.12.2016 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. 27. Notice of petition and time of service -Notice of every petition required to be served upon any person shall be in Form No. 6, and shall, unless otherwise ordered by Court or provided by these rules, be served not less than 14 days before the date of hearing. Provided always that such notice when by the Act or under these Rules is required to be served on the Central Government, the same shall, unless otherwise ordered by the Court, be served not less than 28 clear days before the date of hearing . 6. Form-6 reads as follows: Form No. 6 (In Winding-up matters) IN THE HIGH COURT OF JUDICATURE AT ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. ....... OF ....... In the matter of Companies Act, 1956; And In the matter ___________________ (Full title as per proceeding) To, Name and address of the Respondent Company. TAKE NOTICE THAT Petition under Section ........... of the Companies Act, 1956 for winding-up of the abovenamed Company presented by ............. the Petitioner on --/--/200 is admitted pursuant to Order dated --/--/200 and the same is now fixed for hearing before the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as other persons only as and if the Act or the Rules may require or the Judge or the Registrar may direct, there was no need to make any separate provision for such service in Rule 26. The Act or the Rules or the order of the Judge or the Registrar, as the case may be, anyway would have provided for the same. A separate provision for such service would make little sense. Secondly, even lexicologically the structure of the sentence in Rule 26 providing for such service does not support the interpretation suggested by Mr.Andhyarujina. A correct reading of Rule 26 implies that the requirement of service of petition is provided for in Rule 26 itself. It contains two commands, namely, (i) every petition shall be served on the respondent, if such respondent be named in the petition, and (ii) every petition shall be served on such other person as the Act or the Rules may require or as the Judge or the Registrar may direct. In other words, if a respondent is named in the petition, the requirement of service of the petition on such respondent is the requirement of Rule 26 itself. One does not have to go to the other provisions of the Act or the Rules or the orders of the Judge or the Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly mean the notice on admission and not preadmission notice as no such procedure is contemplated under the statute. Therefore, such procedure having not been statutorily recognized and not saved by the Transfer Rules, all company petitions which have not been admitted and notice has not been served on the respondent under Rule 26 have to be necessarily transferred. 9. In my opinion, the judgment of the Bombay High Court in West Hills Realty Private Ltd. and Ors. vs. Neelkamal Realtors Tower Pvt. Ltd., gives the correct position. As rightly noted by the Bombay High Court, Rule 26 of the Companies (Court) Rules, 1959 deals with Service of petition whereas Rule 27 deals with Notice of petition. There is nothing in Rule 26 to show that the service of the petition is to be effected only when the petition is admitted. In fact, admission of a winding up petition is dealt with the Rule 96 of the Companies (Court) Rules 1959. The said Rule 96 reads as follows:- 96. Admission of petition and directions as to advertisement - Upon the filing of the petition, it shall be posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have an adverse effect on the reputation and standing of the company, which is a going concern and is actively engaged in the business of property development including, inter-alia, the project, namely, Brahma City at Gurgaon, Haryana. The respondent was directed to file an affidavit setting down willingness of the respondent company to abide by all the terms and conditions of the agreement between the parties, making it clear that in case there is any variation in the plot being offered to the petitioner, the same will be strictly in accordance with the terms of the agreement and all consequences in terms thereof shall follow. Thereafter, several hearings have taken place. The matter was heard on 17.11.2015, 01.08.2016, 03.02.2017, 12.07.2017 and 24.10.2017. 7. On 03.02.2017, the respondent company was directed to file an additional affidavit to place on record the expected time period within which the respondent company would be in a position to hand over the possession of the plot in question. The affidavit was filed. 8. Hence, as per the orders of this court no formal notice was issued on the respondent to show cause as the respondent entered appearance on the first d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
