S.J. KATHAWALLA, J.

1. The Applicant is an ex-director of the Company in liquidation, M/s Minar International Limited ("the Company"). The Company was ordered to be wound up by an Order of this Court dated 16th March 2012 and the Official Liquidator was accordingly appointed as liquidator of the Company. By an Order dated 17th September 2013 the Company Court (Coram: N.M. Jamdar, J.) granted leave to the Original Petitioner to bring the Official Liquidator of the Company on record in a suit that the Original Petitioner was prosecuting against the Company and the Applicant. That Suit had already been filed in 2009 in the Kodagu District (Coorg) in Karnataka ("the Suit"). Further, the Company Court also granted leave to the Original Petitioner under Section 446 of the Companies Act, 1956 ("the 1956 Act") to proceed with the Suit and to bring the Official Liquidator on record. The Application for leave was allowed by the Company Court.

2. The present Application has been filed on 15th May, 2018, seeking: an order from the Company Court to hold and declare that with the repeal of the 1956 Act and its substitution by the Companies Act, 2013 ("the 2013 Act") the Order granting leave is rendered null and void in view of this Court losing jurisdiction to continue the Suit (Prayer (a)); recall of the aforesaid Order granting leave under Section 446 of the 1956 Act (wrongly numbered as prayer (a)). The Application also seeks interim reliefs of stay of further proceedings in the Suit. As this Application is being decided finally and as it was argued on that basis, the prayer for interim reliefs does not arise for consideration.

3. The main ground pleaded in the Application and as contended by learned Advocate for the Applicant for revoking the leave under Section 446 of the 1956 Act is set out in prayer (a) of the Application. In the Application and in the submission of the Applicant, it is contended that the grant of leave under Section 446 of the 1956 Act is contrary to the doctrine of estoppel as the Original Petitioner/Petitioning Creditor has already elected its remedy of filing the Suit for recovery of moneys against the Company and the Applicant, who stood guarantor for the credit facilities extended to the Company. It was submitted that the effect of grant of such leave was to allow two proceedings to proceed simultaneously against the Company or its ex Director, the Applicant herein.

4. Although the Application accepts and admits that the Company Petition having been filed and allowed much prior to 1st June 2016, is a 'saved Petition' and continues to remain within the jurisdiction of this Court, the learned Advocate for the Applicant submitted that by the coming into force of Section 430 of the 2013 Act on 1st June 2016, this Court has lost all jurisdiction over the winding up proceedings and that the Order granting leave under Section 446 of the Act ceased to be alive. It was also submitted that Section 430 of the 2013 Act is a procedural provision that operates retrospectively. It is further submitted that all orders passed in the Suit also are a nullity as a result of the aforesaid submission.

5. Mr. Sharan Jagtiani, learned Counsel for the Official Liquidator, opposed the Application and submitted that the same is totally misconceived in law. As regards the doctrine of election, it is submitted that the same has no application to the present case because the same can never apply as between the Suit and the winding up proceeding. The Suit is a proceeding for recovery of money against the Company and the Applicant in his personal capacity as guarantor and for realisation of security whereas the winding up proceeding is based on the exercise of a statutory right of a creditor that would result in winding up of a company, which is an order in rem.

6. It was then contended on behalf of the Official Liquidator that the other submission that the 2013 Act repeals the earlier 1956 Act and that Section 430 of the 2013 has the eff