TaxTMI 
TaxTMI 
2018 (1) TMI 1444
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.... refuted the contentions of the respondent. She submits that under Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 (hereinafter referred to as the '2016 Rules') all the petitions where the petition is servedon the respondent in terms of Rule 26 of the Companies (Court) Rules, 1959 shall not be transferred to the NCLT. She submits that Rule 26 read with Rules 27 and 28 have been interpreted by the Bombay High Court in West Hills Realty Pvt. Ltd. v. Neelkamal Realtors Tower Pvt. Ltd., [2017(3) MhLJ 384]to imply that the admission of the case is not necessary for application of Rule 26. 3.The learned counsel for the respondent has however stated that in view of the Rule 27 read with Form No.6 what is envisagedin these ....
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.....Rules 26 and 27 of the Companies (Court) Rules, 1959 read as follows: "26.Service of petition-Every petition shall be served on the respondent, if any, named in the petition and on such other persons as the Act or these rules mayrequire or as the Judge or the Registrar may direct. Unless otherwise ordered, acopy of the petition shall be served along with the notice of the petition. 27. Notice of petition and time of service -Notice of every petition required to beserved upon any person shall be in Form No. 6, and shall, unless otherwise ordered by the Court or provided by these rules, be served not less than 14 daysbefore the date of hearing."Provided always that such notice when by the Act or under these Rules isrequired....
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....etitioner/s mentioned below. Copies ofthe Petition and the Affidavit-in Support thereof are enclosed. Dated this ...... day of ..... 200.." 7.Bombay High Court inWest Hills Realty Pvt. Ltd. v. Neelkamal Realtors Tower Pvt. Ltd.(supra), stated as follows:- "8. Coming now to Rules 26 to 29, even a cursory reading of these rules makes it clear that the rules treat the two subjects, namely, service of petition and notice of petition, differently. Service of petition implies service on the respondent or other person, as the case may be, of a copy of the petition, whereas notice of the petition connotes notice of the hearing of the petition before the court. Rule 26 provides for service of petition, whilst Rule 27 pr....
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....he interpretation suggested by Mr.Andhyarujina. A correct reading of Rule 26 implies that the requirement of service of petition is provided for in Rule 26 itself. It contains two commands, namely, (i) every petition shall be served on the respondent, if such respondent be named in the petition, and (ii) every petition shall be served on such other person as the Act or the Rules may require or as the Judge or the Registrar may direct. In other words, if a respondent is named in the petition, the requirement of service of the petition on such respondent is the requirement of Rule 26 itself. One does not have to go to the other provisions of the Act or the Rules or the orders of the Judge or the Registrar for such requirement. There is one mo....
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....2015, 94/2016 and 364/2016 dated 11.1.2017,however, did not agree with the view of the Bombay High Court and held as follows: "24.As rightly pointed out by the learned Additional Solicitor General, in the case of West Hills Realty Pvt. Ltd. (supra), the Court had not laid down the definite principle that Rule 26 also encompasses cases where pre-admission notice has been issued. 25.With great respect to the observations contained therein, the court was more concerned about the anomalywhich may occurin the event of such cases being transferred. In my respectful view, that aspect may not be a right consideration to examine as to what is the support and import of Rule 5 of the Transfer Rules. The Rule has to be interpreted to give true....