P.K. Saikia, Member - (1.) This application has a hackneyed past. It may be stated here that the petitioner herein had filed an application under Sections 433/434 and 439 of the Companies Act, 1956 against the Apposite Benefit Society Ltd. (in short, the company) before Hon'ble Gauhati High Court seeking certain reliefs, so mentioned in the petition. The Company Petition No. 08 of 2015 was registered on the basis of such petition. In the aforesaid proceeding certain reliefs were sought for. They are as follows:- "Your petitioner, therefore, humbly prays your Lordships for an order that- (a) The above named company, namely, Apposite Benefit Society Limited, having its Registered Office at Azara, Borali Park, P.O. Azara, Pin 781017, District Kamrup (Rural) Assam, be wound up by this Hon'ble Court under the provisions of the Companies Act, 1956; and (b) The Official Liquidator attached to this Hon'ble Court be appointed and be directed to take possession of the assets properties, books, records, papers etc of the said Apposite Benefit Society Limited and liquidate the dues of the petitioner immediately; and (c) Costs and/or incidental to this application be paid by the Official Liquidator from the assets of the said company; and (d) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may seem fit and proper".
(2.) On receipt of the proceeding, notice was ordered to be sent to the aforesaid company. However, during the pendency of said proceeding, to be precise, on 7th December, 2016, the Companies (Transfer of Pending Proceedings) Rules, 2016 (in short, the Rules of 2016) came to be notified. As required under Rule 5 of Rules, 2016, said proceeding was transferred to this Tribunal.
(3.) Since the present proceeding has a chequered history, I find it necessary to reproduce some of the orders, passed in this proceeding to acquaint oneself with the back ground of the present proceeding. In that connection, I find it necessary to reproduce the order dated 15th March, 2017 passed by this Tribunal. For ready reference, same is reproduced below: "Vide Registrar's note dated 10.03.2017, record is put up before me today. The Registrar's note dated 10.03.2017 is reproduced below: "Through Letter No. HC.XIV/141/R.O.S. dated 8/3/2017, the Registry of Hon'ble Guwahati High Court has transferred the records pertaining to CP No. 08/2015, to this Bench as per Hon'ble Gauhati High Court order dated 22/02/2017. The case records pertain to the case of Madhusudan Mandal versus Apposite Benefit Society and is a petition under section 433 of the Companies Act, 1956 on the grounds of inability to pay debts. As per clause 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016, such petitions shall be treated as applications under section 7, 8 or 9 of the Insolvency and Bankruptcy Code, as the case may be and dealt with in accordance with Part II of the Code. But the proviso to the section also provides as follow: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition under section 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal within a period of sixty days from the date of this notification, failing which the petition shall abate. Hon'ble Gauhati High Court while ordering the transfer of records vide order dated 22/02/2017 has not given any instruction on the admission of the petition in light of provisions contained in the proviso above. The period of sixty days from the date of notification was 5th February 2017. In view of the above, the case records are put up for perusal of Hon'ble Member (Judicial), along with request for necessary instructions for admitting the petition." 2. Facts leading to this order, in short, are as follows: One, Madhusudan Mandal, as petitioner has filed C.P. No. 08/2015 under Sections 433, 434 & 439 of the Companies Act, 1956 against respondent company namely Apposite Benefit Society Ltd. having its registered office at Azara, Borali Park, P.O. Azara, District Kamrup, Assam, Pin-781017, alleging that the petitioner has deposited in the respondent Bank an amount to the tune of Rs. 5,00,000/- as a term loan for 400 days and in that connection, a certificate vide Certificate No. 01150505002 dated 13.02.2014 has been issued. It has been stated that the maturity value of such fixed deposit would be Rs. 5,75,000/- The amount aforesaid got matured on 30.03.2015. However, the company did not pay the maturity amount as agreed upon earlier for which the petitioner has approached the respondent company on several occasion, but without any success. 3. Having found no other way out, the petitioner filed C.P. No. 08/2015 seeking following reliefs: "a) The above named Company, namely, Apposite Benefit Society Limited, having its Registered Office at Azara, Borali Park, P.O. Azara, PIN-781017, District-Kamrup (Rural), Assam, be wound up by this Hon'ble Court under the provisions of the Companies Act, 1956; and b) The Official Liquidator attached to this Hon'ble Court be appointed and be directed to take possession of the assets properties, books, records, papers etc. of the said Apposite Benefit Society Limited and liquidate the dues of the Petitioner immediately; and c) Costs and/or incidental to his application be paid by the Official Liquidator from the assets of the said Company; and d) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may deem fit and proper." 4. The Hon'ble High Court, on receipt of the application, ordered issuance of notice upon the respondent Company to show cause as to why the application for winding up should not be allowed. The notice was ordered to be sent by registered post vide order dated 14.08.2015 in C.P. No. 08/2015. However, notice could not be served in the normal way upon the respondents for which Hon'ble High Court ordered publication of notice upon the respondents through two newspapers, one in English and one in Bengali vide order dated 23.05.2016. 5. The direction rendered vide order dated 23.05.2016 was complied with for which Hon'ble High Court, by its order dated 31.08.2016 held that respondents were served with notice. For ready reference, the order dated 31.08.2016 is reproduced below: "Heard Mr. SS Roy, learned counsel for the petitioner. Perused the affidavit dated 1.8.2016. By that affidavit, the petitioner has submitted two newspapers, namely, the 'Telegraph' dated 15.7.2016 and 'Dainik Jugasanka' dated 28.7.2016. In both these newspapers, notice has been published against the Apposite Benefit Society Ltd. In the present company petition, service of notice on the sole respondent is accordingly accepted. Let the matter be listed for further orders after 4 (four) weeks." 6. While the matter was pending before the Hon'ble High Court, the Notification dated 07.12.2016 viz. Companies (Transfer of Pending Proceedings) Rules, 2016 (for short, 'Rules of 2016') was notified and in view of Rule 5 thereof, which requires that all petitions relating to winding up under clause (e) of section 433 of the Act of 1956 (for short, '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 as required 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 Act for doing further needful in accordance with the requirements of Insolvency & Bankruptcy Code, 2016. For ready reference, the provisions of Rule 5 are reproduced below: "5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts--(1) All petitions relating to winding up 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 as required 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 Act, exercising territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of the Code, as the case may be, and dealt with in accordance with Part II of the Code: "Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition under sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate." 7. The Hon'ble High Court, in view of provisions of Rule 5 of the Rules of 2016, had opined that service of notice on the respondents by way of paper publication is not service as contemplated in Rule 5 of the Rules of 2016 and, therefore, Hon'ble High Court, vide order dated 22.02.2017, directed said proceedings to be transferred to this Bench of National Company Law Tribunal for doing the needful in accordance with law. For ready reference, the relevant part of the order of the Hon'ble High Court is reproduced below: "The only issue arising in this proceeding at this stage is whether service of notice without being accompanied by a copy of the petition would amount to compliance of Rule 26, so as to prevent Rule 5 of the Rules of 2016 to come into operation. The recent decision of the Bombay High Court in the case of West Hills Realty Private Ltd. Vs. Neelkamal Tower Pvt. Ltd. [Company petition No. 331/2016] is precisely on this point. In the said decision, it has been categorically held that service of a copy of the petition upon the named respondent would be necessary for completing the process indicated in Rule 26 of the Company (Court) Rules, 1959 and, therefore, mere service of notice without the accompanying petition would not amount to compliance of Rules 26. I am in respectful agreement with the aforesaid view expressed by the learned Single Judge of the Bombay High Court. The decisions of the Supreme Court relied upon by Mr. Dasgupta are all on the point of proof of service of notice but in the present case we are concerned with proof of "service of petition" upon the respondent in compliance with Rule 26 of the Company (Court) Rules, 1959. As such, the decisions relied upon by Mr. Dasgupta would be of no assistance to him. For the reasons stated hereinabove, this court is left with no option but to direct that this winding up petition be transferred to the Guwahati Bench of the Company Law Tribunal NCLT) in accordance with Rule 5 of the Rules of 2016. Registry to take steps in the matter accordingly. Upon such transfer, the learned Company Law Tribunal may cause fresh notice of the proceeding be issued to both parties after renumbering the petition." 8. In view of the above, as required under the order aforesaid, Registry is directed to take steps in the matter of service of notice to both the parties after renumbering the petition in this Bench.";