Transfer of winding up petitions limited to unserved matters; a served petition was not transferable to the NCLT.

Clause 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 was construed as a conjunctive provision limiting transfer of winding up petitions to matters that were both pending and not yet served on the respondent. The phrase requiring that the petition had not been served was treated as a qualifying condition, not surplusage, and the Removal of Difficulties Order did not alter that reading. On that interpretation, a winding up petition under section 433(e) of the Companies Act, 1956, where service had already been effected, was not liable to be transferred to the National Company Law Tribunal.

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Issues: Whether a winding up petition under section 433(e) of the Companies Act, 1956, in which service had already been effected on the respondent, was liable to be transferred to the National Company Law Tribunal under the Companies (Transfer of Pending Proceedings) Rules, 2016 and the corresponding order under section 434 of the Companies Act, 2013.

Analysis: The language of clause 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 was read as a conjunctive provision. The Court treated the phrase requiring that the petition must be one "where the petition has not been served on the respondent" as a qualifying condition, not as surplusage. On that construction, transfer was confined to winding up petitions that were both pending and unserved. The same interpretation was not altered by the Removal of Difficulties Order. The Court also found support in the view taken by the Bombay High Court on a similar point.

Conclusion: The petition was not liable to be transferred to the National Company Law Tribunal because service had already been effected on the respondent.

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