IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MRS. JUSTICE S.SUJATHA COMPANY APPLICATION No.15/2019 C/W COMPANY APPLICATION No.763/2016 COMPANY APPLICATION No.764/2016 IN COMPANY PETITION No.294/2015 BETWEEN:
M/s ULTRA TECH CEMENT LIMITED HAVING ITS REGISTERED OFFICE AT NO.45, INDUSTRY HOUSE, 5TH FLOOR, FAIR FIELD LAYOUT, RACE COURSE ROAD, BENGALURU-560 001 REP BY ITS DEPUTY MANAGER. … APPLICANT (COMMON) (BY SRI ABHINAV R., ADV.) AND:
J.S.R. CONSTRUCTIONS PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.318, SRI SOUDHA, INDIRANAGAR 1ST STAGE, BENGALURU-560 038, REP BY ITS MANAGING DIRECTOR. …RESPONDENT (COMMON) C.A.No.15/2019 IS FILED UNDER SECTION 151 OF CPC, 1908 PRAYING TO RE-CALL THE ORDER DATED 15.06.2017 ISSUING NOTICE ON C.A.NO.763/2016 AND C.A.NO.764/2016.
C.A.No.763/2016 IS FILED UNDER SECTION 151 OF CPC, 1908 PRAYING TO RE-CALL THE ORDER DATED 16.09.2016 AND RESTORE THE PRESENT COMPANY PETITION TO ITS FILE, IN THE INTEREST OF JUSTICE AND EQUITY.
C.A.No.764/2016 IS FILED UNDER SECTION 5 OF THE LIMITATION ACT, 1963 PRAYING TO CONDONE THE DELAY OF 29 DAYS IN FILING THE APPLICATION FOR RECALL OF THE ORDER DATED 16.09.2016, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE COMPANY APPLICATIONS ARE COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R C.A.No.15/2019 is filed by the applicant seeking for recalling of the order dated 15.06.2017 whereby notice was ordered by this Court on C.A.Nos.763/2016 and 764/2016 filed by the applicant.
2. It is submitted that C.A.Nos.763/2016 and 764/2016 are filed by the applicant to recall the order dated 16.09.2016 and to condone the delay in filing the recalling application. It is submitted that at the time of filing of the present petition, the jurisdiction to grant the relief as sought for, vested with this Court whereas by virtue of the amendment brought to the Companies Act, 2013 and in terms of the Companies (Transfer of Pending Proceedings) Rules, 2016 (‘Rules, 2016’ for short), the jurisdiction to grant the relief as sought in the present petition vests with the National Company Law Tribunal (NCLT). In view of the same, the present matter requires to be transferred to NCLT. Therefore, the order of issuing notice on C.A.Nos.763/2016 and 764/2016 requires to be recalled since the said applications were filed to recall the order dated 16.09.2016 – peremptory order of dismissal for non- compliance of office objections and to condone the delay in filing the recalling application, before issuance of notice to other side.
3. Memo has been filed by the petitioner to transfer the matter to NCLT, in view of the amendment brought to the Companies Act, 1956 recalling the orders as sought for.
4. It is ex-facie apparent that in Company Petition No.294/2015, an order was passed on 16.09.2016 as under:-
“Two weeks’ time is granted to comply with the office objections failing which the petition stands dismissed without reference to the Bench.”
5. C.A.Nos.763/2016 and 764/2016 were filed to recall the said order passed before issuance of notice to the respondent and to condone the delay in filing the application. Notice was issued by this Court on the said applications vide order dated 15.06.2017. Before issuance of notice to the other side, the petitioner has filed C.A.No.15/2019 to recall the order dated 15.06.2017. In terms of the amendment brought to the Companies Act, 2013 relating to Section 434 and the Companies (Transfer of Pending Proceedings) Rules, 2016 (Rules 2016) coming into force, it is clear that 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.
6. In view of the aforesaid, the present petition certainly attracts Rule 5 of Rules, 2016 and as such, issuance of notice to other side would not arise or in other words, issuance of notice on these applications would prejudice the rights of the petitioner to avail the transfer of the pending winding up proceedings in terms of Rules, 2016.
7. Hence, C.A.No.15/2019 is allowed. The order dated 15.06.2017 is recalled.
8. For the reasons stated in the affidavits accompanying C.A.Nos.763/2016 and 764/2016, the delay in filing the recalling application is condoned and the order dated 16.09.2016 is recalled. Accordingly, C.A.Nos.763/2016 and 764/2016 are allowed. Company Petition No.294/2015 is restored to file.
9. However, in view of first proviso to Section 434 of the Companies Act, 2013 read with Rules, 2016 as aforesaid, the Company Petition has to be transferred to the NCLT.
10. Accordingly, Company Petition No.294/2015 is transferred to NCLT, Bengaluru in terms of Rule 5 of Rules, 2016.
Registry to transfer the file to NCLT, Bengaluru, forthwith.
Sd/- JUDGE PMR.