TMI Blog2019 (3) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. In any event, it can scarcely be expected that an order passed by a High Court would be carried by way of an appeal to any tribunal. In this context, it may be apposite to record qua the judgment in India Steam Laundry [2018 (9) TMI 337 - CALCUTTA HIGH COURT] that the ratio decidendi in a judgment is exactly what the judgment decides in the context of the issues before it and not what the judgment may imply to say. Without going into the legality of the answers rendered in India Steam Laundry the decision and the dictum therefore, be confined to a case of oppression and mismanagement instituted in this Court prior to the 1988 Amendment coming into effect in 1991. The dictum has no bearing on other company proceedings, far less any impact on proceedings that have been saved and are required to be continued in the High Courts pursuant to the first proviso to Section 434(1)(c) of the Act and as prescribed by the Central Government by the notification of December 7, 2016. The only alteration to such position now is that any party to the pending proceedings in this Court has a right to apply for the transfer of the proceedings to the relevant tribunal. The objection t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Act, 2013. It appears from the order impugned before the Division Bench in the India Steam Laundry (P) Limited case that the limited order that was passed by the company Court was in respect of the particular petition under Section 397/398 of the 1956 Act by holding that with effect from 15 December, 2016 this Court lost jurisdiction to hear and dispose of the present proceeding which stands transferred to the NCLT by operation of law. In course of the appeal in India Steam Laundry (P) Limited , the following four issues were framed at paragraph 30 of the report: (a) Whether the ouster of the jurisdiction of the High Court in relation to company matters needs to be express or the same may be ousted by implication? (b) Whether parties to a lis can insist on continuing their dispute in the forum the same was initiated or have to bow down to the wishes to the legislature for transfer of the said jurisdiction to another forum? (c) Whether the term all and including in Section 434(1)(c) of the 2013 Act are expansive in nature or the same is to be read in a restrictive manner? (d) Whether Section 68 of the Amendment Act, 1988 continues to subsist regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated or have to bow down to the wishes to the legislature for transfer of the said jurisdiction to another forum? Change of forum is not a choice of parties, but is the choice of the legislature. The parties cannot contend that they have a vested right to continue in the forum the lis was initiated. The legislature can always change the forum. Forum is a matter of procedure and change of the same does not result in change of substantive rights of parties. (c) Whether the term all and including in Section 434(1)(c) of the 2013 Act are expansive in nature or the same is to be read in a restrictive manner? The term ncluding in Section 434(1)(c) of the 2013 Act is extensive and expansive and not restrictive in nature. Accordingly, Section 434(1)(c) of the 2013 Act that states all proceedings under the Companies Act, 1956 including proceedings relating to . would include all matters, without any exception, pending before the District Courts and High Court and all such matters would have to be transferred to the NCLT. (d) Whether Section 68 of the Amendment Act, 1988 continues to subsist regardless of the coming into force of Section 434(1)(c) of the 2013 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 434 of the Act of 2013, first in 2016 and now in 2018, Section 434(1)(c), which is relevant for the present purpose, reads as follows: 434. Transfer of certain pending proceedings (1) On such date as may be notified by the Central Government in this behalf,- (a) (b) (c) all proceedings under the Companies Act, 1956 (1 of 1956), including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer: Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government. Provided further that any party or parties to any proceedings relating to the winding up of companies pending before any Court immediately before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018, may file an application for transfer of such proceedings and the Court may by order transfer such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (Special Provisions) Act, 1985 shall continue to be dealt with by such High Court in accordance with the provisions of the Act. Thus, for the purpose of the issue that has been raised herein, it is evident, on a reading of Section 434(1)(c) of the Act of 2013 with clause 5(1) of the Notification of December 7, 2016 that it is only where a petition for winding-up instituted under Section 433 (e) of the Act of 1956 has not been served on the company, will such winding-up petition stand transferred to the relevant Bench of the Tribunal. In the present case, the creditor s winding-up petition resulted in an order of winding-up being passed on June 14, 2016. Thus, as at December 7, 2016, there was no question of transfer of the winding-up proceedings to any Tribunal. The appeal that has been carried from an order passed in the winding-up proceedings is not contemplated under the Act of 2013 or any notification issued thereunder to stand transferred to any tribunal. In any event, it can scarcely be expected that an order passed by a High Court would be carried by way of an appeal to any tribunal. In this context, it may be apposite to record qua the judgment in India Ste ..... X X X X Extracts X X X X X X X X Extracts X X X X
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