Section 434 of Companies Act, 2013 – Transfer of certain pending proceedings

SECTION 434. TRANSFER OF CERTAIN PENDING PROCEEDINGS

[Effective  from 1st June 2016,  except sub-section (1) (d), clause (c) of sub-section (1) effective from 15th December, 2016]

[1] [(1) On such date as may be notified by the Central Government in this behalf,—

(a)   all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10E of the Companies Act, 1956 (1 of 1956), immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispose of such matters, proceedings or cases in accordance with the provisions of this Act;

(b)   any person aggrieved by any decision or order of the Company Law Board made before such date may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order:

Provided that the High Court may if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days; and

(c)   all proceedings under the Companies Act, 1956 (1 of 1956), including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer:

Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government.

[2] [Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal:

[7][Provided also that]-

(i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; or

(ii) the proceedings relating to winding up of companies which have not been transferred from the High Courts;

shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959”.

[8] [Provided also that proceedings relating to cases of voluntary winding up of a company where notice of the resolution by advertisement has been given under sub-section (1) of section 485 of the Companies Act, 1956 but the company has not been dissolved before the 1st April, 2017 shall continue to be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959].

(2) The Central Government may make rules consistent with the provisions of this Act to ensure timely transfer of all matters, proceedings or cases pending before the Company Law Board or the courts, to the Tribunal under this section.]

Applicable Rules

[3]Companies (Transfer of Pending Proceedings) Rules, 2016

[Effective from 15th December, 2016 except Rule 4, which is effective from 1 April 2017 ]

Rule 2. Definitions.- (1) In these rules, unless the context otherwise requires-

(a) “Code” means the Insolvency and Bankruptcy Code, 2016 (31 of 2016);’

(b) “Tribunal” means the National Company Law Tribunal constituted under section 408 of the Companies Act, 2013.

(2) Words and expressions used in these rules and not defined, but defined in the Companies Act, 1956 (1 of 1956) (herein referred to as the Act), the Companies Act, 2013 (18 of 2013) or the Companies (Court) Rules, 1959 or the Code shall have the meanings respectively assigned to them in the respective Act or rules or the Code, as the case may be.

Rule 3.Transfer of pending proceedings relating to cases other than Winding up.—All proceedings under the Act, including proceedings relating to arbitration, compromise, arrangements and reconstruction, other than proceedings relating to winding up on the date of coming into force of these rules shall stand transferred to the Benches of the Tribunal exercising respective territorial jurisdiction:

Provided that all those proceedings which are reserved for orders for allowing or otherwise of such proceedings shall not be transferred.

[Rule 4. Pending proceeding relating to voluntary winding up.- All proceedings relating to voluntary winding up of a company where notice of the resolution by advertisement has been given under sub-section (1) of section 485 of the Act but the company has not been dissolved before the 1st day of April, 2017 shall continue to be dealt with in accordance with provisions of the Act.][5]

[Rule 5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts.– ( l ) 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 ll 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 upto 15th day of July, 2017 , failing which the petition shall stand abated.

Provided further that any party or parties to the petitions shall, after the 15th day of July, 2017, be eligible to file fresh applications under sections 7 or 8 or 9 of the Code, as the case may be, in accordance with the provisions of the Code.

Provided also that where a petition relating to winding up of a company is not transferred to the Tribunal under this rule and remains in the High Court and where there is another petition under clause (e) of section 433 of the Act for winding up against the same company pending as on 15th December, 2016, such other petition shall not be transferred to the Tribunal, even if the petition has not been served on the respondent.] [6]

Rule 6.Transfer of pending proceedings of Winding up matters on the grounds other than inability to pay debts.—All petitions filed under clauses (a) and (f) of section 433 of the Companies Act, 1956 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 exercising territorial jurisdiction and such petitions shall be treated as petitions under the provisions of the Companies Act, 2013 (18 of 2013).

Rule 7.Transfer of Records.- Pursuant to transfer of cases as per these rules the relevant records shall also be transferred by the respective high Courts to the National Company Law Tribunal Benches having jurisdiction forthwith over the cases so transferred.

Rule 8.Fees not to be paid.- Notwithstanding anything contained in the National Company Law Tribunal Rules, 2016, no fee shall be payable in respect of any proceedings transferred to the tribunal in accordance with these rules.

Applicable Notification

Transfer of matters or proceedings or cases pending before the Company Law Board to National Company Law Tribunal

Notification No. S.O. 1936(E), dated 1st June, 2016

In exercise of the powers conferred by clause (a) of sub-section (1) of section 434 of the Companies Act, 2013 (18 of 2013), the Central Government hereby appoints the 1 st day of June, 2016, on which all matters or proceedings or cases pending before the Board of Company Law Administration (Company Law Board) shall stand transferred to the National Company Law Tribunal and it shall dispose of such matters or proceedings or cases in accordance with the provisions of the Companies Act, 2013 or the Companies Act, 1956.

Applicable Order

Companies (Removal of Difficulties) Fourth Order, 2016, dated 7th December, 2016

Whereas clause (c) of sub-section (1) of section 434 of the Companies Act, 2013 (hereinafter referred to as the 2013 Act) provides that on a date which may be notified by the Central Government for the purpose of transfer of pending proceedings, all proceedings under the Companies Act, 1956 (hereinafter referred to as the 1956 Act) including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer;

And, whereas, the proviso thereof further provides that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government;

And, whereas, clause (c) of sub-section (1) of section 434 of the 2013 Act shall come into force from the 15th December, 2016;

And, whereas, provisions of sections 6 to 32, 60 to 67 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code) have been brought into force on 1st December, 2016 and sections 33 to 54 of the Code and the provisions of Chapter XV and Chapter XX of the 2013 Act shall be notified to come into force from 15th December, 2016;

And, whereas, it has been decided that (i) proceedings under the 1956 Act with High Courts on all cases other than winding-up as on 15th December, 2016 shall stand transferred to the Benches of the Tribunals exercising respective territorial jurisdiction and (ii) all cases of winding up under the 1956 Act which are pending before the High Courts as on 15th December, 2016 and wherein petitions have not been served to the respondents as per rule 26 of Companies (Court) Rules, 1959 shall be transferred to Tribunal, and all remaining cases of winding up pending on that date would continue with the respective High Courts;

And, whereas, difficulties have arisen regarding continuation of provisions of the 1956 Act for (i) those proceedings relating to cases other than winding-up that are reserved for orders for allowing or otherwise and (ii) those winding up cases which would not be transferred to Tribunal and be proceeded with by High Courts on account of commencement of the corresponding provisions under the 2013 Act or under the Code;

And, whereas, difficulties have also arisen regarding transfer of proceedings relating to cases other than winding-up where hearings have been completed and only pronouncement of order is pending or is reserved since their transfer to Tribunal may result into delay and rights of parties to the proceedings are likely to be affected prejudicially;

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 470 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following Order to remove the above said difficulties, namely:-

1. Short title and commencement.-

(1) This Order may be called the Companies (Removal of Difficulties) Fourth Order, 2016.

(2) It shall come into force with effect from the 15th December, 2016.

2. In the Companies Act, 2013, in Section 434, in sub-section (1), in clause (c), after the proviso, the following provisos shall be inserted, namely:-

“Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal:

Provided further that –

(i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; or

(ii) the proceedings relating to winding up of companies which have not been transferred from the High Courts;

shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959”.

Applicable Order

Companies (Removal of Difficulties) Order, 2017, Order No. S.O. 2042(E) dated 29th June, 2017

Whereas clause (c) of sub-section (1) of section 434 of the Companies Act, 2013 (hereinafter referred to as the 2013 Act) provides that on a date which may be notified by the Central Government for the purpose of transfer of pending proceedings, all proceedings under the Companies Act, 1956 (hereinafter referred to as the 1956 Act) including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer;

And, whereas, the proviso to the said clause (c) provides that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government;

And, whereas, the said clause (c) of sub-section (1) of section 434 of the 2013 Act has come into force from the 15th December, 2016;

And, whereas, in pursuance of the third proviso to the said clause (c), as inserted by S.O. 3676 (E) dated 7th December, 2016, the proceedings relating to winding up of companies which have not been transferred from the High Courts shall be dealt with in accordance with provisions of the 1956 Act and the Companies (Court) Rules, 1959;

And, whereas, in accordance with the said third proviso read with rule 4 of Companies (Transfer of Pending Proceedings) Rules, 2016, all applications and petitions relating to voluntary winding up of companies pending before a High Court as on 1st April, 2017 shall continue with and dealt with by the High Court in accordance with provisions of the 1956 Act;

And, whereas, provisions of section 59 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code) which provide for voluntary winding up have been brought into force on 1st April, 2017;

And, whereas, provisions of sections 304 to 323 of the 2013 Act, which sought to replace the corresponding provisions of the 1956 Act, were omitted by the Code;

And, whereas, difficulties have arisen regarding transfer of proceedings relating to those cases of voluntary winding-up of a company where notice of the resolution by advertisement has been given under sub-section (1) of section 485 of the 1956 Act but the company has not been dissolved before the 1st April, 2017, since the Code provides for a substantially different framework for persons who may be appointed as liquidators and for making of an application for dissolution by the liquidator. While under the 1956 Act, any person could be appointed as a liquidator, only an insolvency professional registered with the Insolvency and Bankruptcy Board of India can be appointed as a liquidator subject to certain conditions. Further, under the 1956 Act, liquidator is required to make a report to the Official Liquidator who, in turn, makes a report to the High Court for dissolution of the company, whereas under the Code, the liquidator is required to make an application for dissolution directly to the Tribunal; And, whereas, re-appointment of liquidators by companies which had passed resolutions for voluntary winding up under the 1956 Act before 1st April, 2017 and making of report by the Official Liquidators to the High Court (wherein reports have been made by liquidators to the Official Liquidators) would create difficulties;

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 470 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following Order to remove the above said difficulties, namely:-

1. Short title and commencement.– (1) This Order may be called the Companies (Removal of Difficulties) Order, 2017. (2) It shall come into force with effect from the 29th day of June, 2017.

2. In the Companies Act, 2013, in section 434, in sub-section (1), in clause (c),-

(a) in the third proviso, for “Provided further that-”, the following shall be substituted, namely:-

“Provided also that-”;

(b) after the third proviso, the following proviso shall be inserted, namely:-

“Provided also that proceedings relating to cases of voluntary winding up of a company where notice of the resolution by advertisement has been given under sub-section (1) of section 485 of the Companies Act, 1956 but the company has not been dissolved before the 1st April, 2017 shall continue to be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959.”

[1] Substituted by the Insolvency and Bankruptcy Code, 2016 (13 of 2013), s. 255 & eleventh schedule.

[2] Inserted by the Companies (Removal of Difficulties) Fourth Order, 2016 vide Notification no.
S.O. 3676(E) dated 7th December 2016, effective from 15th December 2016

[3] Inserted by the Companies (Transfer of Pending Proceedings) Rules, 2016 vide Notification no. G.S.R. 1119(E) dated 7th December 2016

[4] Substituted for the words” sixty days ” by Companies (Transfer of Pending Proceedings) Amendment Rules, 2017 vide Notification no. F. No. 1/5/2016-CL-V dated 28th Feb 2017

[5] Substituted by Companies (Transfer of Pending Proceedings) Second Amendment Rules, 2017 vide notification no. GSR 732(E) dated 29th June 2017, prior to substitution it read as under:-

“4.Pending proceeding relating to Voluntary Winding up: All applications and petitions relating to voluntary winding up of companies pending before a High Court on the date of commencement of this rule, shall continue with and dealt with by the High Court in accordance with provisions of the Act.”

[6] Substituted by Companies (Transfer of Pending Proceedings) Second Amendment Rules, 2017 vide notification no. GSR 732(E) dated 29th June 2017, effective from 16th June, 2017, prior to substitution it read 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 [six months][4] 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.”

[7] Substituted for the words “Provided further that –” by Companies (Removal of Difficulties) Order, 2017 vide order no. S.O. 2042(E) dated 29th June, 2017.

[8] Inserted by Companies (Removal of Difficulties) Order, 2017 vide order no. S.O. 2042(E) dated 29th June, 2017.