The main legal point established in the judgment is that service of notice without the accompanying petition does not comply with Rule 26 of the Company (Court) Rules, 1959, and therefore, warrants the transfer of the winding up petition to the Company Law Tribunal.

Heard Mr. N. Dasgupta as well as Mr. S.S. Roy, learned counsel appearing on behalf of the petitioner. None appears for the respondent.

2. This petition has been filed under Section 433, 434 and 439 of the Companies Act, 1956 seeking an order for winding up of the respondent company and for other consequential measures.

3. Notice in this case was issued by the order dated 14/08/2015, pursuant where to, steps had also been taken by the petitioner for service of notice upon the respondent company. However, during the pendency of this proceeding, the Government of India, Ministry of Corporate Affairs had issued a Gazette notification dated 07/12/2016, inter-alia, providing that all pending applications for winding up, wherein the petition has not been served on the respondent, as required under Rule 26 of the Company (Court) Rules, 1959, shall be transferred to the Bench of the Company Law Tribunal having jurisdiction over the matter. A question, therefore, arose in the present case, as to whether this petition is also required to be transferred to the Company Law Tribunal. For the purpose of ascertaining as to whether this winding up petition deserves to be transferred before the Bench of the Tribunal, the following factual background is required to be taken note of :

I. Pursuant to the order dated 14/08/2015, the petitioner had taken steps by registered post for service of notice upon the respondents. However, records reveals that notice could not be served upon the sole respondent.

II. On 01/10/2015, the petitioner filed an affidavit bringing on record a computer generated track report of the article booked under Registration No. RS468071536IN dated 20/08/2015 in support of his contention that the notice was delivered at the Esplanade Office of the respondent on 07/09/2015.

III. Taking note of the contents of the affidavit dated 01/10/2015, this Court had passed an order dated 05/10/2015 directing the Registry to verify and submit a report as to whether notice was issued upon the sole respondent under the aforesaid registration number and furnish a report.

IV. Registry’s report dated 18/11/2015 indicates that notice was issued upon the sole respondent by registered post on 19/08/2015 but neither any AD Card nor any un-served notice had been received back from the sole respondent.

V. On 02/02/2016, the learned counsel for the petitioner made a prayer before this Court seeking leave to take fresh step for service of notice upon the sole respondent, which prayer was allowed by this Court making the notice returnable on 01/04/2016. Even on this occasion, although notice was issued by registered post, yet, no service report was available. Therefore, on 01/04/2016, the learned counsel for the petitioner once again made a prayer before this Court to permit him to take fresh step on the respondent company at its corporate address at Kolkata by registered post. The said prayer was allowed. But even on this occasion, service of notice could not be completed upon the respondent.

VI. On 23/05/2016, the learned counsel for the petitioner appeared before this Court and submitted that notice could not be served upon the respondent; therefore, a prayer was made to permit substituted service upon the respondent company. The order dated 23/05/2016 passed by this Court permitting service of notice by substituted method, is quoted herein below for ready reference :-

“23/05/2016

Mr. SS Roy, learned counsel for the petitioner submits that steps taken by registered post could not be served. He submits that there is reason to believe that notice cannot be served upon the respondent by usual process as the respondent must be avoiding service. He prays that he be permitted to take steps by substituted process.

Prayer is allowed.

Appellant shall take steps within 6(six) weeks by publishing notices in two local newspapers, one in English and another in Bengali. The two newspapers shall be produced before this court alongwith an affidavit after si