Bombay High Court: In a case dealing with petitions pending admission before the High Court filed under the Companies Act, 1956 where winding up of a company was sought, the Single Bench of S.C. Gupte, J held that every winding up petition under clause (e) of Section 433 which is pending before the High Court and which is not served by the petitioner on the respondent company shall stand transferred to NCLT under Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016.
The petitioners in the present case contended that the petitions having been served on the respondent as required by Rule 26 of the Companies (Court) Rules, 1959, the transfer notification does not apply to them and accordingly, this court retains its jurisdiction over them. It is the case of the respondent that these petitions stand transferred to NCLT as they are covered in the mandate of the notification which confers powers on the Central Government to constitute NCLT and NCLAT for transfer of various proceedings pending before the High Courts to NCLT.
Analysing the submissions put forward by the counsel, the Bench considered the relevant provisions of the Act in light of the facts of the case and held that Rule 26 has no reference to the order of admission of the petition. It further said that if such pending petition is served by the petitioner on the respondent, the petition will continue to be dealt with by this court and the applicable provisions will be the provisions of 1956 Act. Accordingly, the petitions in this case were not transferred to NCLT. Conversely, it implied that unserved pending petitions are to be transferred to NCLT to be governed by the Companies Act, 2013. [West Hills Realty Private Ltd. v. Neelkamal Realtors Tower Pvt. Ltd., 2016 SCC OnLine Bom 10038 , decided on 23.12.2016]