J U D G M E N T

1. The instant company petition has been preferred under Sections 433 (e) and (f), 434 and 439 of the Companies Act, 1956, praying that the respondent company – M/s. Olive Telecommunication Private Ltd., be wound and is predicated on the non-payment of the principal amount of Rs. 89,48,638/- . In this regard, it is stated that the audited balance sheet of the respondent company, as filed with the Registrar of Companies, reflects a liability of Rs. 24,73,438/- payable to the petitioner; however, the same does not reflect the total due amount as it does not account for the amount of Rs. 50,43,071/- along with interest @15% per annum, awarded vide the Arbitral Award dated 30.04.2014 passed in CMP No. 22/2014, relating to the same subject matter.

2. Briefly stated, the parties entered into a Master Service Agreement dated 01.12.2010 whereby the respondent company agreed to utilize the marketing and sales services of the petitioner company, initially for a period of 3 months, which came to be extended up to 15.05.2011. It is stated that pursuant to the services rendered, the petitioner raised (6) invoices, of which payment was made by the respondent company with respect to only the first invoice.

3. Despite repeated reminders, the respondent company failed/neglected to discharge its liability owed to the petitioner, and consequently, the petitioner invoked arbitration proceedings against the respondent company. Thereafter, an Award dated 30.04.2014 came to be passed in the said proceedings, bearing CMP No. 22/2014 and an amount of Rs. 76,12,526 was adjudged to be due and payable by the respondent company, which included interest @ 15% per annum as also costs. It is brought forth that since the amount awarded remained unpaid, the petitioner was constrained to serve a statutory legal notice upon the respondent company, calling upon them to male good the liability owed within a period of three weeks, failing which winding up proceedings would be instituted against the respondent company.

4. At the outset, it is apposite to point out that the present winding up petition is a complete non-starter. A perusal of the record shows that the proceedings are at nascent stage, so much so that neither a Provisional Liquidator nor an Official Liquidator has been appointed to the respondent company. As such, no substantive orders have been passed in this company petition.

5. In view of this, vide order 21.07.2023, the parties were directed to file written submissions with regards to the date of service of the present petition, as also whether or not the present matter is liable to be transferred to the National Company Law Tribunal1. Pursuant to the said order, written submissions have been filed on behalf of the petitioner. It has been urged therein that in the present petition, service was effected on 29.10.2016, which date is prior to the coming into effect of the Companies (Transfer of Pending Proceedings) Rules, 2016,2 which came into force on 15.12.2016. As regards the transfer of the present petition to the NCLT, it is submitted that the aforementioned rules provide for two circumstances, namely compulsory transfer and transfer at the discretion of the Company Court. As regards compulsory transfer, it is stated that Rule 5 of the Transfer Rules stipulates that those proceedings wherein the petition has not been served must be compulsorily transferred to the NCLT. However, since the service was effected in the present petition prior to the coming into force of the Transfer Rules, the said provision pertaining to compulsory transfer would not apply to the present petition. As regards the transfer of a petition at the discretion of the Company Court, reliance has been placed on the fifth proviso to Section 434 (1)(c) of the Companies Act of 2013, and it is stated that an application seeking such transfer is a pre-condition, and since no such application has been filed in the present proceedings, no occasion arises to entertain a p