TMI Blog2020 (11) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... provided further persuades this Court to say that the proviso 3(ii) to Section 434 (1)(c) is subject to fifth proviso; and thus on application under the fifth proviso, pending case can be transferred - In the instant case, concededly the financial creditors i.e. bank(secured creditor) has moved the application under Section 7 of the code and the party who would otherwise be treated as operational creditor (unsecured creditors) has invoked the jurisdiction of this Court. In the opinion of this Court, transfer would be in alignment with the object of the amendment and therefore, the application is required to be accepted and the petition being Company Petition No.353 of 2016 is ordered to be transferred to the Tribunal under the Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 434 of the Companies Act, 2013 was amended; effective from 01/12/2016, as also the subsequent amendment of the very provision effective from 17/08/2016; amendment and unamended Rule 5 of the Companies Rules, 2016, as also Form No.6 under Rule 27. After considering the various legal provisions as above, it was held that Rules 26 and 27 of the Companies (Court) Rules, 1959 were applicable at pre admission stage. The resultant position after conjoint reading of the provision as above was explained in paragraph 17 and 18 thus: 17. The resultant position in law is that, as a first step, when the Code was enacted, only winding up petitions, where no notice under Rule 26 of the Companies (Court) Rules was served, were to be transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows: 238. Provisions of this Code to override other laws.--The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 18. Shri Dave's ingenious argument that since Section 434 of the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly only those matters where the petition was not served upon the company, could be transferred; by subsequent amendment, all the petitions pending with the High Court irrespective of the stages, could be transferred. According to the learned Counsel for the opponent, the cases which have not been transferred from the High Court as contemplated in (ii) of third proviso to Section 434 (1)(c) cannot be transferred. On plain reading of the said proviso with fifth proviso which commences with provided further persuades this Court to say that the proviso 3(ii) to Section 434 (1)(c) is subject to fifth proviso; and thus on application under the fifth proviso, pending case can be transferred. However, the matter would not rest there. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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