TaxTMI 
TaxTMI 
2017 (5) TMI 315
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....er also seeks an order and directions against the Registrar of the companies to restore the name of the said company to the Register of Companies and seeks that the notice dated 20th April, 2012, 20th May, 2012 and notification dated 30th March, 2013 to quash and set aside. 2. During the course of argument of this petition, a question arose for consideration of this Court as to whether in view of Rule 3 of the Companies (Transfer of Pending Proceedings) Rules, 2016, the present proceedings under Sections 559 and 560 of the Companies Act, 1956 have to be transferred to the National Company Law Tribunal (NCLT) constituted under Section 408 of the Companies Act, 2013 or not. Learned Senior Counsel for the petitioner and the learned Senior Counsel for respondent nos.2 and 3 addressed this Court on this issue. 3. On 10th April 2014, the petitioner filed this company petition for various reliefs in this Court. The company petition was opposed by the respondents by filing affidavit-in-replies. The matter was thereafter heard on several occasions by this Court. 4. Before the conclusion of the arguments by both the parties, at the late stage, the petitioner herein made an....
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.... words "Court" by Act No. 11 of 2003. By the Companies Act, 2013 the Companies Act, 1956 came to be repealed and various provisions of Companies Act, 2013 were brought into force by issuance of various notifications by the Central Government from time to time. By exercising of powers conferred by section 1(3) of the Companies Act, 2013. 7. Insofar as Section 248 of the Companies Act, 2013 which corresponds to Section 560 of the Companies Act, 1956, the same has been brought in force by a notification dated 26th December, 2016. Section 252 of the Companies Act 2013, which is also brought in force by the same notification dated 26 December, 2016 provides for an appeal to the NCLT against the order of the Registrar notifying the Company as dissolved under Section 248. Sections 408 and 410 of the Companies Act, 2013 confers powers on the Central Government to constitute the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) respectively. In exercise of those powers the Central Government issued two separate notifications both dated 1st June, 2016 constituting the NCLT and the NCLAT, respectively. On 1st June, 2016, the Central Government by ....
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....ansfer of pending proceedings of Winding up on the ground of inability to pay debts. Rule 6 provides for transfer of pending proceedings for Winding up of matters on the ground other than inability to pay debts. Rule 7 provides for transfer of Records. 11. Mr Chatterji, learned Senior Counsel for the petitioner invited my attention to various notifications referred to aforesaid issued by the Central Government by exercising powers conferred under Section 1(3) of the Companies Act, 2013 including the notification dated 7th December, 2016 notifying Rules called as the Companies (Transfer of Pending Proceedings) Rules, 2016. It is submitted by the learned Senior Counsel that this company petition has been filed by the petitioner for various reliefs under Section 560(6) of the Companies Act, 1956. He submits that the matter was fully heard from time to time by various judges of this Court. He submits that due to certain reasons the petitioner was required to carry out amendments to the company petition which amendments have been permitted by this Court. 12. My attention is invited to Rule 3 of the said the Companies (Transfer of Pending Proceedings) Rules, 2016. He submits tha....
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....ngs from the stage before their transfer. He submits that under these enabling powers conferred upon the Central Government, the Central Government has issued the said notification dated 7th December, 2016 and notified the said the Companies (Transfer of Pending Proceedings) Rules, 2016. He submits that the said Rules have been brought in force with effect from 15th December, 2016 except Rule 4 which provides for pending proceedings relating to voluntary Winding up. 16. It is submitted that in this case, the proceedings are not admittedly reserved for orders for allowing or otherwise. The arguments were not concluded. The petitioner had applied for the amendments to the company petition, which were allowed by this Court. No argument have been advanced by the parties after such amendment were carried out on merits. He submits that in view of Section 434(1)(c) of the Companies Act, 2013, the pending proceedings thus will have to be transferred to the NCLT and will have to be proceeded with from the stage before its transfer. 17. It is submitted by the learned Senior Counsel for respondent nos.2 and 3, that the Court has to consider while interpreting a provision as to in what c....
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....ourt is whether in the present proceedings the conditions for not transferring set out in the proviso to Rule 3 of the said Company (Transfer of Pending proceedings) Rule, 2016 are satisfied and thus are not required to be transferred to NCLT. 21. Before I deal with the relevant provisions of the Companies Act, 1956, the Companies Act, 2013 and various notifications issued by the Central Government by exercising powers under section 1(3) of the Companies Act, 2013 and by exercising powers under Section 434(1)(2) of the Companies Act, 2013, I shall first deal with the factual aspect in this matter. 22. It is not in dispute that the petitioner has filed the proceedings under Section 560(6) of the Companies Act, 1956 for various reliefs. Though the matter was heard from time to time by various Judges of this Court, the fact remains that these proceedings were not reserved for any orders. It is not in dispute that the petitioner had made an oral application for seeking amendments to the company petition. The respondent nos.2 and 3 had opposed the said application seeking amendments to the petition. The petitioner had thus filed a company application inter alia praying for amendme....
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....ter amendments to the company petition were carried out by the petitioner. Even according to the petitioner the arguments were not concluded. The submissions made by the learned Senior Counsel for the petitioner across the bar that the argument were concluded or were substantially concluded is contrary to the plea of the petitioner itself. 26. With these facts in hand, let me now consider the effect of Rule 3 of the said company (Transfer of Pending Proceedings) Rule, 2016. It is not in dispute that the Companies Act, 1956 is relating to companies and certain other associations and provides for different subjects including the subject of striking of the defunct Companies from the Register of the Companies by the Registrar. The word "Court" was already substituted by Act No. 11 of the 2003 by the word "Tribunal" i.e. the "NCLT" as defined under section 2(g). It is not disputed that the section 248 of the Companies Act, 2013 corresponds to section 560 of the Companies Act, 1956. 27. By a separate notification issued by the Central Government by exercising powers conferred under section 1(3) of the Companies Act, 2013, the Central Government has appointed 26th December, 2....
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....de in Section 434 of the Companies Act, 2013, Section 434(1)(a) provides for transfer of proceedings before the Company Law Board to the NCLT. Section 434(1)(b) provides for an appeal to the High Court, by any person aggrieved by any decision or order of Company Law Board made before the date as may be notified by the Central Government within 60 days from the date of communication of the decision or the order of CLB to him on any question of law arising out of such order. Section 434 (1)(c) of the Companies Act, 2013 provides for transfer of other proceedings under the Company Act, 1956. The said provision is very wide in nature and includes proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of the Companies pending immediately before such date before any District Court or the High Court. 32. The said provisions further provides that the Tribunal may proceed to deal with such proceedings from stage before their transfer. The first proviso to said section 434(1)(c) clearly provides that such proceedings relating to winding up of the Company shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Go....
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....tion was not concluded and thus in view of Section 434 (1)(c) read with proviso thereto, read with the Companies (Removal of Difficulties) Fourth Order, 2016, read with the Companies (Transfer of Pending Proceedings) Rules, 2016, these proceedings stood transferred to the NCLT with effect from 15th December, 2016. In my view the interpretation of the proviso to Rule 3 as sought to be canvased by the learned Senior Counsel for the petitioner thus being contrary to aforesaid provisions can not be accepted. 34. In my view, notification dated 7th December, 2016 issued by the Central Government by exercising powers conferred under Sections 434(1) and 434(2) of the Companies Act, 2013 thereby prescribing the Rules called as the Companies (Transfer of Pending Proceedings) Rules, 2016 will have to be read with substantial provisions of section 434(1)(2) of the Companies Act, 2013. The Court has to also consider the purpose, objects and intent of the legislature while enacting an Act. The purpose and intent of enacting the Companies Act, 2013 was to consolidate and to amend the laws relating to companies for last 100 years in this Country. Before the enactment of the Companies Act, 20....
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....notice of petition was not served on the respondent pursuant to the order of admission, will stand transferred to the NCLT and will be taken up for admission once again to require the petitioners in those petitions to furnish information for admission of the petitions under section 7, 8 or 9, of the Insolvency and Bankruptcy Act, 2016. 38. It is held that for winding up of Company under Section 433(e) of the Companies Act, 1956 which is pending before the High Court and which is not served by the petitioner on the respondent Company on or before 15th December, 2016 shall stand transferred to the NCLT under Rule 5 of the said Company (Transfer of Pending Proceedings) Rules, 2016. If such pending petition is served by the petitioner on the respondent before such date, the petition will continue to be dealt with by this Court and the applicable provisions will be provisions of the companies Act, 1956. The said judgment dated 23rd December, 2016 is further clarified by this Court by an order dated 17th January, 2017 by this Court. It is clarified that the sine qua non for transfer of a winding up petition to the NCLT under the Companies (Transfer of Pending Proceedings) Rules, 20....
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....ding and the order is not reserved or the matter may be at any other stage, the same would be contrary to Section 434(1)(c) read with proviso, read with the Companies (Removal of Difficulties) Fourth Order, 2016 and also would be contrary to legislative intent to consolidate and amend the laws relating to Companies and several other parties under the Companies Act, 2013 and the Insolvency and Bankruptcy Act, 2016 under one roof and before one adjudicating authority i.e. The National Company Law Tribunal subject to limited exception provided in the proviso to Rule 3. 42. In so far as the judgment of the Supreme Court in case of Animal Welfare Board of India vs. A. Nagaraja (Supra) relied upon by the learned Senior Counsel for the petitioner is concerned the Supreme Court in the said Judgment has construed the provisions of the Prevention of Cruelty to Animals Act, 1960 and has held that in the matters of welfare legislation, the provisions of law should be liberally construed in favour of weak and infirm. The Court should be vigilant to see that benefits conferred by such remedial and welfare legislature are not defeated by subtle devices. The provisions of the Companies Act, ....