TaxTMI 
TaxTMI 
2017 (6) TMI 985
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....he term "G.S.R." stands for General Statutory Rule and the aforesaid notification was issued by the Central Government in exercise of powers conferred under sub-sections (1) and (2) to Section 434 of the Companies Act, 2013. The Statutory Order was passed in exercise of power under Section 470(1) of the Companies Act, 1956. The Notification and the Order stipulate: "G.S.R. 1119(E).-- In exercise of the powers conferred under subsections (1) and (2) of section 434 of the Companies Act, 2013 (18 of 2013) read with sub-section (1) of section 239 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016) (hereinafter referred to as the Code), the Central Government hereby makes the following rules, namely):-- 1. Short title and Commencement. - (1) These rules may be called the Companies (Transfer of Pending Proceedings) Rules, 2016. (2) They shall come into force with effect from the 15th December, 2016, except rule 4, which shall come into force from 1st April, 2017. 2. Definitions.- (1) In these rules, unless the context otherwise requires- (a) "Code" means the Insolvency and Bankruptcy Code, 2016 (31 of 2016); (b) "Tribunal" means the Natio....
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.... shall abate. (2) All cases where opinion has been forwarded by Board for Industrial and Financial Reconstruction, for winding up of a company to a High Court and where no appeal is pending, the proceedings for winding up initiated under the Act, pursuant to section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall continue to be dealt with by such High Court in accordance with the provisions of the Act. 6. Transfer of pending proceedings of Winding up matters on the grounds other than inability to pay debts. - All petitions under clauses (a) and (f) of section 433 of the Companies Act, 1956 pending before a High Court and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal exercising territorial jurisdiction and such petitions shall be treated as petitions under the provisions of the Companies Act, 2013 (18 of 2013). ..................... ......................... ........................... .................. ..................... ......... ..... ..... ..... ...... ..... .... .................. ..................... ...........
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.... reserved for orders for allowing or otherwise and (ii) those winding-up cases which would not be transferred to Tribunal and be proceeded with by High Courts on account of commencement of the corresponding provisions under the 2013 Act or under the Code; And, whereas, difficulties have also arisen regarding transfer or proceedings relating to cases other than winding-up where hearings have been completed and only pronouncement of order is pending or is reserved since their transfer to Tribunal may result into delay and rights of parties to the proceedings are likely to be affected prejudicially; Now, therefore, in exercise of the powers conferred by sub-section (1) of section 470 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following Order to remove the above said difficulties, namely.- 1. Short title and commencement.- (1) This Order may be called the Companies (Removal of Difficulties) Fourth Order, 2016. (2) It shall come into force with effect from the 15th December, 2016. 2. In the Companies Act, 2013, in Section 434, in sub-section (1), in clause (c), after the proviso, the following provisos sh....
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....tions involved in this proceeding ought to stand transferred. But, in my opinion, the conjunction "and", employed in the aforesaid provision, qualifies the petitions which are required to be transferred. Lawmakers do not employ words in statute as surplusage. In my opinion, proper construction of this provision would be this. In the first part of clause 5, there is general description of the petition which is pending before the High Court, and in the second part after the punctuation comma - there is the qualifier - which petition has not been served on the respondent. Only those petitions are required to be transferred. In the event the contrary interpretation, as advanced by Mr. Kar, is accepted, then the second part of the first sentence of that provision shall be rendered otiose. In such a case, the petitions, which have been filed but not served, would also come within the ambit of the all encompassing expression used in the first two words of the aforesaid provision. In my opinion, however, since all the petitions have been qualified with the expression "where the petition has not been served ...", only those petitions, filed in the Court but service thereof have not been eff....