TaxTMI 
TaxTMI 
2019 (2) TMI 1049
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....titioner has relied upon judgment of the Bombay High Court in [2017 (3) MilL] 384} West Hills Realty Private Ltd., vs. Neelkamal Realtors Tower Ltd. to contend that mere service of petition on the respondent as envisaged under Rule 26 of The Company (Court) Rules, 1959 is sufficient for this court to continue to adjudicate the present petition." 3. I had been while dealing with the issue as to which matters are to be retained by this court in Co.Pet. No.123/2016, titled as 'Grundfos Pumps India Pvt. Ltd. v. IIC LIMITED', decided on 09.01.2018, held as follows: "4. Rule 5 of 2016 Rules reads as follows: "[5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up of a company under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and, where the petition has not been served on the respondent under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Companies Act, 2013 exercising territorial jurisdiction to be dealt with in accordance with Part I....
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.... in person or by an Advocate/s, who is entitled to practice in this Hon'ble Court. If you wish to oppose the said Petition, the grounds of opposition or a copy of your Affidavit, should be furnished with your notice to the Advocate/s for the Petitioner/s mentioned below. Copies of the Petition and the Affidavit-in Support thereof are enclosed. Dated this ...... day of ..... 200.." 7. Bombay High Court in West 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 provides for notice of petition. Rule 28 provides for the manner in which service is to be effected on the company, whereas Rule 29 casts the responsibility for all services required to be effected by the Rules or by orders o....
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....f admission of the petition. Rules 27 and 28, on the other hand, make it clear that they together form the requirement of service of the notice of the petition on the respondent company after the petition is admitted and provide for the time and manner of such service. Rule 29, on the other hand, fixes the responsibility of any service under the Rules or directions of the court or the Registrar on the petitioner. The scheme of these four rules, thus, suggests that whereas service of the petition is mandatory on the respondent and, if the Act or the Rules provide or the Judge or the Registrar directs, on such other person/s, whereas notice of the petition on the respondent is obligatory only in the event of admission of the petition. So also, other persons are entitled to notice of the petition only if the Act or the Rules require or the Judge or the Registrar directs. In case of any service, whether service of the petition or of the notice of the petition, it is the petitioner who must execute it." 8. I may note that Madras High Court in Mr.Sanjay Goel vs. EL Forge Ltd. being CP Nos.14/2015, 239/2015, 242/2015, 94/2016 and 364/2016 dated 11.1.2017, however, did not agree with the ....
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....e petition. 11. Clearly Rule 26 does not deal only with situations where copy is served on the respondent after admission of the winding up petition. Hence, the present petition is liable to be heard by this Court." 4. In a recent judgment, the Supreme Court in Forech India Ltd. v. Edelweiss Assets Reconstruction Co.Ltd., Civil Appeal 818/2018, by judgment dated 22.01.2019 has dealt with the above noted Rules 26 and 27 of the Companies(Court) Rules, 1959. The Supreme Court held as follows: "16. We are of the view that Rules 26 and 27 clearly refer to a preadmission scenario as is clear from a plain reading of Rules 26 and 27, which make it clear that the notice contained in Form No. 6 has to be served in not less than 14 days before the date of hearing. Hence, the expression "was admitted" in Form No. 6 only means that notice has been issued in the winding up petition which is then "fixed for hearing before the Company Judge" on a certain day. Thus, the Madras High Court view is plainly incorrect whereas the Bombay High Court view is correct in law. 17. The resultant position in law is that, as a first step, when the Code was enacted, only winding up petitions, where n....