- (1.) The petitioner had originally approached Hon'ble Delhi High Court by filing a Company Petition under Section 433 (e) read with 439 of the Companies Act, 1956 with a prayer for winding up Wianxx Impex Private Limited-respondent on the basis of various averments made in the petition. The respondent could not be served and Hon'ble Delhi High Court vide its order dated 13.01.2017 transferred the matter to this Tribunal as per notification issued by the Central Government on 07.12.2016. The order of the Hon,ble Delhi High Court reads as underl-ain terms of the notification Regd. No.D.L.-33004/99 dated 07.12.2016, issued by the Ministry of Corporate Affairs and in particular, Clause 5 thereof, the present winding up petition under Sections 433(e) & 439 of the Companies Act, 1956, stands transferred to the Principal Bench, National Company Law Tribunal, New Delhi (hereinafter referred to as the 'NCLT'). The Registry is directed to transmit the record of the present petition to the NCLT for further proceedings, in accordance with law. Counsel for the petitioner shall appear before the NCLT on 14.03.2017" The matter was listed before the Principal Bench on 14.03.2017 as per the order dated 13.01.2017 passed by Hon'ble Delhi High Court. Thereafter the Registrar was asked to complete the paper book in accordance with the provisions of Rules known as Companies (Transfer of Pending Proceedings) Rules, 2016 and the affidavit of service was also required to be filed in terms of Rules known as Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Despite three dates fixed before the Registrar no affidavit has been filed claiming that a petition filed under Section 433 (e) read with 439 of the Companies Act, 1959 must continue under the provisions of old Act.
(2.) We have heard the learned counsel on 10.07.2017 and have dismissed the petition. We proceed to record our reasons. It is appropriate to mention that there is no challenge to the Rules. Therefore, Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 has to be complied with by submitting every information required for admission of the petition under Section 7, 8 or 9 of the Insolvency and Bankruptcy Code, 2016. It would be apposite to read the Rule 5 which is as under:- "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. (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." A perusal of the Rule shows that all petitions relating to winding up filed before a High Court under Section 433 (e) etc. under provisions of the erstwhile Companies Act, 1956 where a copy of the petition has not been served on the respondent in accordance with the provisions of Rule 26 of the Companies (Court) Rules, 1959, was required to be transferred to the Bench of the Tribunal established under Section 419 of the Act. All such petitions were required to be treated as application under Section 7, 8 & 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code'). All these petitions were to be dealt with in accordance with part II of the Code. It is pertinent to mention that part II of the Code deals with Insolvency resolution and liquidation for Corporate Persons and is covered by Chapter I to VII (from Section 4 to 77). It also cast obligation on the part of a person like the petitioner before us to submit all information required for admission of the petition under Section 7, 8 or 9 of the Code including the details of the proposed Insolvency Resolution Professional to the Tribunal within 60 days (later extended for six months) failing which the petition was to abate.
(3.) The petitioner has also not filed any affidavit of service in accordance with the provisions of Rules known as Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.;