The mandatory requirement of serving a formal notice to the Respondent in Form-6 as per Rule 26 read with Rule 27 is essential for retaining a winding up petition in the Company Court.

Dr. S. Muralidhar, J.

This appeal is directed against an order dated 5th February, 2019 passed by the learned Company Judge, transferring the Appellant's Company Petition No.319/2015 to the National Company Law Tribunal ("NCLT").

2. The facts necessary for the purposes of present appeal are that the Appellant on 26th October, 2012 booked a residential plot and deposited a sum of Rs.28,82,061/- by a cheque dated 26th October, 2012, drawn in favour of the Respondent. Further payments were made to the Respondent towards the plot and as on 23rd August, 2013, the Appellant had paid Rs.1,58,20,012/-, which was more than 50% of the price of the plot. According to the Appellant, it was subsequently learnt that the size of the plot allotted to him had been reduced by 20% leading the Appellant to ask the Respondent to return the whole amount together with interest @ 12% per annum, by a letter dated 2nd August, 2014. According to the Appellant, the Respondent kept assuring about the return of the funds. The Appellant was stated to have then learnt of a judgment dated 5th February, 2015 passed by the High Court of Punjab & Haryana, cancelling the licenses granted to the Respondent for development of the housing project in Gurgaon. This apparently was affirmed by the Supreme Court by an order dated 13th March, 2015 when it dismissed the SLP filed by the sister concern of the Respondent.

3. The Appellant sent a legal notice dated 1st April, 2015 to the Respondent under Sections 433 and 434 of the Companies Act, 1956 demanding return of the aforementioned sum together with interest @ 12% per annum. Following this, the Appellant filed Company Petition No.319/2015 in this Court under Sections 433(e), 434 and 439 (b) of the Companies Act, 1956 seeking the winding up of the Respondent.

4. On 15th July, 2015 when the petition was listed before the learned Company Judge, the Respondent entered appearance and submitted that it apprehended issuance of notice in the winding up petition which may adversely affect it as it was a going concern, actively engaged in the business of property development. The Respondent undertook to file an affidavit indicating its willingness to abide by all the terms and conditions of the agreement.

5. Relevant to the present appeal, the relevant portion of the order passed by the learned Single Judge notes that the Senior Advocate appearing for the Respondent, stated that "he has been instructed to appear in the matter after his client noticed the matter appearing in the cause list". Later in the order, the learned Company Judge recorded the statement of the Senior Advocate on instructions that "his client shall file an affidavit setting down willingness of the respondent-company to also abide by all the terms and conditions of the agreement between the parties,...". The learned Single Judge then recorded as under"

"It is made clear that in view of the peculiar circumstances of this case, no notice to show cause as to why the respondent company be not wound up is issued to the respondent at this stage."

6. The winding up petition was listed on 3rd February, 2017 on which date the learned Single Judge directed the Respondent to file an affidavit, indicating the time by which the Respondent would hand over possession of the plot in question to the Appellant. Pursuant thereto, the Respondent filed an affidavit dated 12th July, 2017 stating that it would hand over possession of the plot booked by the Appellant within one a half years from the date of approval of the zonal plan by the Directorate of Town and Country Planning ("DTCP"), Haryana. However, on 13th December, 2017, when the petition was listed, the Respondent relied upon a notification dated 7th December, 2016 of the Ministry of Corporate Affairs ("MCA") and contended that since the notice in the petition had not yet been issued, the Company Court did not have jurisdiction to adjudicate the petition any longer and it should be transferred to the NCLT.

7. The lear