Advanced Search options
Showing 1 to 100 of 165416 Records
1...1854 (2) TMI 8 - HIGH COURT OF ALLAHABAD
Raghubar Dayal Versus The Sarrafa Chamber
Winding-up of unregistered companies ......
........... wfully formed. The legislature, therefore, felt the need to enact special provisions in Part IX to provide for the winding up of unregistered companies legitimately formed. In the circumstances, I find no force in the contention put forward by the learned counsel for the petitioners, viz., that Part IX contemplates that a company formed contrary to the provisions of section 4 can also be wound up through court. I am, therefore, of the opinion that this petition must fail on the preliminary ground that the court cannot entertain a petition for the winding up of a company formed in contravention of the provisions of section 4 of the Act. I make no orders as to costs because the opposite parties are also privy to the formation of an association forbidden by law. Moreover, they had not taken in their reply the point on which they have succeeded. The petition is dismissed. Parties shall bear their own costs. Stay orders dated 15th December, 1952, and 7th August, 1953, are vacated.
2...1871 (8) TMI 1 - ALLAHABAD High Court
Hamid Hussain Versus Controller of Estate-Duty, UP.
Estate Duty Act, 1953 - Whether the sum of Rs. 3,61,939, or any part thereof being the value of the properties settled by the deceased as wakf properties, was rightly included in the principal value of the estate of the deceased and charged to estate ......
3...1900 (8) TMI 7 - SUPREME COURT OF INDIA
Madhubhai Amathalal Gandhi Versus Union of India
Grant of recognition to stock exchanges ......
........... ner is concerned, he was admittedly not an active member, though he now pretends that he was doing business through other members. There is also no material placed before us to support the said assertion. If The classification, between active members and others who were not, is justifiable we hold it is the Government has to draw a line somewhere and to fix a period of activity reasonable in its opinion as a standard to satisfy the test of active member. The burden which lie upon the petitioner who impeached the validity of the classification to show that it violates the guarantee of equal protection has been discharged. On the material placed before us we cannot say that the period fixed by take Government as the standard for ascertaining the active membership is arbitrary or unreasonable. We must make it clear that this finding must be confined only to the validity of the impugned notification dated August 31,1956. The petition accordingly fails and is dismissed with costs.
4...1913 (10) TMI 1 - HIGH COURT OF JUDICATURE AT ALLAHABAD
KISAN SAHKARI CHINI MILLS LTD. Versus UNION OF INDIA AND OTHERS
Incentive Scheme for higher production of sugar ......
........... s notifications issued subsequently would not be applicable, for these rates of Excise duty and additional Excise duty on Levy sugar pertained to all other sugar factories except those which were covered under Notification No. 35/76 has no merits at all. We find no substance in any of the contentions raised by the learned counsel for the petitioner. No other point was urged. 29. In the result, the writ petition fails and is dismissed with costs. 30. While we were delivering judgment in this case Shri Awasthi, learned counsel for the petitioner prayed for a certificate under Article 134-A of the Constitution so as to enable him to go up in appeal to the Supreme Court. Having heard Shri Awasthi we are not satisfied that the proposed appeal to the Supreme Court involves any substantial question of law of general importance or that the question raised in the case needs to be decided by the Supreme Court. The prayer for the certificate made by Shri Awasti is accordingly rejected.
5...1927 (2) TMI 7 - HIGH COURT OF BOMBAY
Matheran Steam Tramway Co. Versus BN. Lang
Transfer to Shares Powers to refuse ......
........... order many be refused without prejudice to the applicant s right to bring an action for rectification. In the present case there is, so far as I can see, no conflict of evidence and the mere fact that Mr. Dinshaw has delayed making his application to the Court is not, in my opinion one which need preclude the Judge from passing an order. The petition in the present case is headed in the matter of the Indian Companies Act and in the matter of the Company. Section 32(3) of the English Act provides that any question relating to the title of any party to the application may be decided on the originating summons or motion. Here the question has developed into one purely of title. I, therefore, think there is nothing in this objection. On the other points in the case I agree with the conclusions arrived at by the Chief Justice. I would dismiss the appeal with costs. Appeal dismissed. Attorneys for appellants Edgelow, Gulabchand, Wadia and Co. Attorneys for respondents Payne and Co.
6...1929 (11) TMI 1 - PRIVY COUNCIL
Commissioner of Income-tax Versus Ahmedabad New Cotton Mills Co. Ltd.
........... immediately reflected in the price obtained for the goods that are sold in these circumstances to contend that there should be undervaluation at one end and not at the other is to raise an argument which their Lordships rsquo cannot accept. Further, section 13 of the Indian Income-tax Act, 1922, says Income profits and gains shall be computed for the purposes of sections 10, 11 and 12 in accordance with the method of accounting regularly employed by the assessee . Of course, that must be the method regularly and properly employed by the assessee, and it Has never been suggested here that this has not been the method regularly employed, nor, in their Lordships rsquo opinion, was it improper. Their Lordships hare merely to consider the point raised by the Commissioner, and it is sufficient to say that for the above reasons the judgment of the High Court is, in their opinion, right. Their Lordships will therefore humbly advise His Majesty that the appeal be dismissed with costs
7...1929 (8) TMI 7 - HIGH COURT OF CALCUTTA
Kharkharee Collieries Ltd., In re
Winding up Receiver not to be appointed of assets with liquidator ......
........... en informed that that order was affirmed on appeal. I doubt whether this section need be considered, and I think I should find myself on more solid ground in basing myself upon the principle of In re Joshua Stubbs, Limited, Barney v. Joshua Stubbs, Limited, 1891 1 Ch. 475 60 LJ Ch. 190 64 LT 306 39 WR 617 from which it appears that where there is a question of competition between a liquidator and a receiver appointed by the Court at the instance of the debenture-holders or mortgagees, the Court will ordinarily, in the exercise of its discretion, give preference to the liquidator. In my judgment, the application so far as it asks for leave to proceed with the suit may be allowed, but so far its relates to possession by the receiver it should be refused. As regards costs, it is true that the applicant has had to apply for leave to proceed with the suit, but it is not that which has stimulated opposition on the part of the liquidator. The applicant must pay the liquidator costs.
8...1930 (1) TMI 13 - HIGH COURT OF RANGOON
Gidne Versus Anglo-Indian & Domiciled European Federation
Company Incorporation of ......
........... omiciled European Community, was supported by a false statement of facts and was, therefore, not fair comment. The libels were little more than technical, and in my opinion nominal, as distinct from contemptuous damages, coupled with an award of costs, will suffice to indicate that in our view there was in fact a libel, that the imputations made therein were false, and that the second respondent has cleared his character of any cloud that may have been cast on it by the libels. I would, therefore, set aside the judgment and decree of the learned Judge on the Original Side of this Court and would dismiss the suit without order for costs so far as the first respondent is concerned and I would award to the second respondent nominal damages of ten rupees with costs on that amount together with the special Advocate s fee of Rs. 660 in the Trial Court. I would direct respondents to bear appellant s costs in the appeal, Advocate s fee to be 20 gold mohurs. Mya Bu, J. mdash I concur.
9...1930 (1) TMI 14 - HIGH COURT OF MADRAS
Liquidator of the City Hygienic Milk Supply Co. Ltd. Versus Official Assignee of Madras
Validity of acts of directors ......
........... n re City Equitable Fire Insurance Co. Sir Earnest Pollock, M.R., says with reference to this section I desire to say, though this is not the first time that it has been said, that that section deals only with procedure and does not give any new rights. It provides a summary mode of enforcing existing rights. To the same effect is the judgment of Sargent, L.J., at page 527. This ruling is decisive of the question, and has been regarded as conclusive of it by a Bench of the Lahore Court in Bhim Singh v. Basheshar Nath Goehla 8 Lah. 167 100 Ind. Cas. 907 AIR 1927 Lah. 433. In my opinion, therefore, it is impossible to hold that the liquidator acquired a new right from the winding-up order to enforce against the directors a claim which had already become time-barred whether under Article 36 or Article 120 of the Limitation Act. I think that the Judgment of Mr. justice Beasley should be upheld and that this appeal fails. I agree to the order of costs passed by my learned brother.
10...1930 (10) TMI 1 - HIGH COURT OF DELHI AT NEW DELHI
JAY ENGINEERING WORKS LTD. AND ANOTHER Versus UNION OF INDIA & OTHERS
Valuation - Related person - Criteria for - Effect of common directors - Valuation - Distributor - Connotation of ......
........... tertainment of a writ petition. But that apart in the present case the petitioner in this writ petition has also challenged basing itself on a decision of the Gujarat High Court, the constitutionality of Section 4 of the Act as interpreted by the Assistant Collector. It is only as a result of the consideration of this point and our conclusion that the expressions related persons, and distributor should be given a narrow and restricted interpretation that it has become unnecessary to pronounce on the question of constitutionality. We, therefore, think that writ is not liable to be dismissed on the preliminary objection raised by Mr. Sapra. 22. In the result, the writ petition is allowed and we direct the issue of a writ on the terms already mentioned. The respondents will determine the liability of the petitioner to excise duty in accordance with the principles enunciated above. The assessee-petitioner will be entitled to its costs in the writ petition Counsel s fee Rs. 500/-.
11...1930 (10) TMI 14 - HIGH COURT OF MADRAS
Madras Native Permanent Fund Ltd., In re
Requirements with respect to memorandum ......
........... oper costs, be treated by the liquidators as available for distribution among the depositors of the Deposit Branch. Rs. 1,955-13-9 in the Loan Branch shall be distributed among the unadvanced shareholders of that branch if any balance is left over, it shall be carried forward to the Deposit Branch. This order disposes of (1) Application No. 820 of 1930 (misfeasance summons), (2) Application No. 436 of 1930 (the liquidators application as to the disposal of Rs. 2,330-13-9 said to be the assets of the Loan Branch), and (3) Application No. 3485 of 1929 regarding the disposal of Rs. 1,500. In the misfeasance summons, the liquidators shall take their costs which I fix at Rs. 150 and pay the applicants costs which are also fixed at Rs. 150. In Application No. 436 of 1930, the liquidators may take Rs. 35 as their costs. I desire, before closing, to tell the liquidators that they must, to save further costs, take steps to have the affairs of the company wound up as early as possible.
12...1930 (10) TMI 15 - HIGH COURT OF LAHORE
Haribans Prasad-Ajodhia Prasad Versus National Sugar Mills, Ltd.
Winding up Power to summon persons suspected of having property of company, etc. ......
........... me time it is quite true, as contended by learned counsel and as laid down in Harkishan Lal v. Saraswati Rani 28 Ind. Cas. 286 40 PR 1915 77 PLR 1915 132 PWR 1915 that the scope of an examination under section 195 is to seek information on matters which may be just or beneficial for the winding up of the company. If the conduct of persons connected with the formation or management of the company is to be investigated, that must be done under s, 196, Companies Act. The two sections referred to have quite different scopes. The first one is intended to be used for the purpose of promoting the liquidation proceedings while the second section is primarily intended to investigate the conduct of those who have been charged with its affairs. The examination in this case was ordered to take place under section 195, Companies Act, and consequently, I can only assume that it has been confined to the purposes mentioned in that section. With these remarks I dismiss this appeal with costs.
13...1930 (11) TMI 13 - HIGH COURT OF CALCUTTA
Jyoti Prasad Singh Deo Versus Patmohana Collieries Ltd.
Winding up Avoidance of certain attachments, executions, etc. ......
........... p the company to restrain further proceedings in the action or proceeding. There is no corresponding section in the Indian Act, but the rule must be the same here. It is lastly argued that, under section 207, clause (4), the liquidator in private liquidation may exercise, without the sanction of the Court, all powers given by this Act to an Official Liquidator in a winding up by the Court. This matter does not touch the question with which we are concerned now. The question before us is whether the learned Subordinate Judge has the power to stay the execution proceeding. We do not mean to suggest that no Court has the power, but we are decidedly of opinion that the learned Additional Subordinate Judge of Asansol has no power to stay the proceedings in execution of the decree obtained by the decree-holder appellant. The result is that this appeal is allowed and the order of the Court below is set aside. The appellant is entitled to his cost which we assess at five gold mohurs.
14...1930 (11) TMI 14 - HIGH COURT OF RANGOON
VERM Chettyar Firm Versus Hormas ji
Winding-up of unregistered companies ......
........... e matter in hand the same interpretation should be put upon section 270, Indian Companies Act, 1913, as has consistently been put upon section 199, English Companies Act, 1862. For these reasons, in my opinion, the view expressed by my learned brother Cunliffe, J., as to the construction of section 270, Indian Companies Act, 1913, was not correct and the appeal must be allowed. The proceedings will be remanded to the Original Side in order that the petition may be determined upon the merits according to law as laid down in this appeal. When the matter is re-heard on the Original Side, it will be for the learned Judge to determine in his discretion whether or not, in the circumstances obtaining in this case, the parties shall be allowed to adduce further evidence by affidavit or otherwise in support of their respective cases. In our opinion the appellants are entitled to their costs of this appeal and we assess the Advocate s fees at five gold mohurs. Mosely, J. mdash I agree.
15...1930 (12) TMI 12 - HIGH COURT OF BOMBAY
Narayanlal Bansilal Versus The Maneckji Petit Mfg. Co., Ltd.
Meetings and proceedings Contents and manner of service of notice and persons on whom it is to be served ......
........... t on the continuance of their agency in the event of a transfer, both of which are, in my opinion, changes of which no notice was given to the shareholders, and are even proposals which the terms of the circular might be said to conceal and in that respect the circular is misleading. To put the matter as simply as possible, if the directors issue a circular in which they refer to certain alterations, and say that the only important alteration is with regard to clause X, whereas there are equally important alterations in clause Y, can it be said that the shareholders have sufficient notice of the proposed alteration in clause Y? I do not think so. The result is that I find on Issue No. 1 that the notice was insufficient, and consequently, on Issue No. 2 that the meeting was not duly convened and the resolutions are not valid and operative. The plaintiff will be granted the declarations and injunctions sought in prayers (a) and (b) of the plaint together with costs of the suit.
16...1930 (12) TMI 14 - IN THE PRIVY COUNCIL
Steel Co. of Canada Ltd. Versus Ramsay
Kinds of share capital - Two kinds of share capital and Dividend - Manner and time of payment of ......
........... e assumption that the argument of the appellants prevails, as soon as the ordinary shareholders had got 7 per cent., the participation of the preferred shareholders in anything left over became obligatory. The learned Judges in the minority in the Court of Appeal were impressed with the idea that the trial Judge s judgment gave the ordinary shareholders a cumulative dividend. It does no such thing. Arithmetically, it may be the case that the amount eventually received by the ordinary shareholders may be the same as if they had had a cumulative dividend. But equally it may not be so. And in any view they are not getting what they do get as a cumulative dividend they are getting it because they are entitled to have the condition fulfilled before the preferred shareholders can call for participation. Their Lordships will humbly advise His Majesty to dismiss the appeal with costs. Solicitors for the appellant Lawrence Jones and Co. Solicitors for the respondent Blake and Redden.
17...1930 (2) TMI 13 - HIGH COURT OF RANGOON
Ram Raghubirlal Versus United Refineries (Burma) Ltd.
Directors Power of ......
........... ed in issue No. 2 quoted above. It involves an assumption that Mr. Behal was a director whose actions would be validated by section 86, Companies Act, an assumption which seems to me unjustifiable. The defendents had raised the question of Behal s competency, and I consider that they were entitled so to cross-examine him as to expose all the facts bearing on that question. It is only when all those facts are before it that the Court can properly come to a finding as to whether the section quoted covers the case or not. We, therefore, return the case to the District Court with a direction that the defendants be permitted to cross-examine S. Behal on the question of his appointment as a director of the plaintiff company, and that both parties be permitted to call such further evidence on that question as they may desire, and that the case be then returned to this Court with findings of the District Court on issue Nos. A, B and C, framed by the District Court on 7th March, 1929.
18...1930 (2) TMI 14 - HIGH COURT OF CALCUTTA
Bagdigi Kujama Collieries Ltd. Versus Jagmohan Das Nagar
Winding up - Appeals from orders ......
........... le for calls in many cases. If, for example, there is a creditor s petition mdash the creditor being prima facie entitled to an order mdash and it turns-out that the majority of the creditors do not desire a winding-up then a question arises for the discretion of the Court. The same question would not arise, if it merely turns out that the majority of the contributories or the majority of the shareholders did not desire the winding-up. For the purpose of giving value to, a more desire of a contributory or shareholder, the position of a fully paid up shareholder may be one of comparative unimportance, but that a person, who may have a large holding in a company, is not entitled to be heard before the Court makes an order bringing the company to an end is a proposition which, so far as I know, has never been given effect to. In my judgment, this appeal must be dismissed with costs. Mr. Westmacott s clients are not entitled to any costs in this appeal. C.C. Ghose. mdash I agree.
19...1930 (3) TMI 13 - HIGH COURT OF ALLAHABAD
Bank of Upper India Ltd. Versus Arif Hussain
Compromise and arrangement ......
........... tomer in the hands of his banker so payable. The money payable under the fixed deposit was not subject to an agreement that it was payable on demand. It was not money of a customer in the hands of the banker so payable, that is, payable on demand. On the other hand, it was money payable by the Bank at a specified time, namely upon the expiry of three months from the date of the deposit. Article 60 of the Limitation Act is, therefore, not applicable to a suit of this description. The plaintiff s claim, however, is saved from the operation of limitation by a variety of reasons. The cause of action accrued to the plaintiff during his minority and the disability has not ceased. Under the composition scheme, sanctioned by the High Court, ten years time was allowed for the debentures to mature for payment. The period of debentures expired on April 1, 1925. The suit was instituted on March 18, 1926. It is clearly within time. This appeal is without force and is dismissed with costs.
20...1930 (3) TMI 14 - HIGH COURT OF ALLAHABAD
Jhandu Mal & Sons Versus Official Liquidators of the Dehra Dun Mussoori Electric Tramway Co. Ltd.
Bills of exchange and promissory notes ......
........... rt. It is admitted that this Hon ble Court refers to the Allahabad High Court in which this application was made. Objection is taken on behalf of the appellant that the Official Liquidator claims a large sum as his travelling expenses to Calcutta. It is denied on behalf of the Official Liquidator that any such claim has been made and we consider that when the application for costs is actually made to the learned Company Judge, it will be a matter for him to decide. The order of the Company Judge before us is, in our opinion, in accordance with the term 9(f) in the compromise between the parties. The order of the learned Company Judge before us deals with items No. 1 to 4 only in the application of August 3, 1928, and does not deal with items Nos. 5 to 9 in that application. On those items we express no opinion, and it will be for the learned Company Judge to decide those items if application is further made to him on the subject. Accordingly we dismiss this appeal with costs.
21...1930 (4) TMI 7 - HIGH COURT OF ALLAHABAD
Co-Operative Co. Ltd. Versus Bhagwan Dass & Co.
Managing director Tenure of appointment ......
........... , he will be paying so much more for his share than he bargained for. Dr. Brijbehari Lal has bargained for the purchase of shares to the exclusion of the dividends due thereon. There is nothing in law to preclude a shareholder from selling the shares only and reserving the dividends to himself. Where shares are sold no matter whether by private treaty or by public sale and it is definitely understood that the shares and not the dividends on the shares are the subject of bargain, the purchaser cannot deprive the original owner of his right to the dividend of a period anterior to the sale, even though the dividend may have been declared subsequent to the date of the purchase. The defendant company, therefore, had no right either to withhold the payment of the dividend from the plaintiff or to pay the same to the purchaser. We are clearly of opinion that the plaintiff s claim was rightly decreed. We dismiss this appeal with costs including in this Court-fees on the higher scale.
22...1930 (5) TMI 7 - HIGH COURT OF ALLAHABAD
UP. Oil Mills Co., Ltd., In re
Company Membership of ......
........... e is no doubt, that, had Syed Alay Nabi still been alive, his name would have been placed on the list of contributories. It is clear, therefore, that I have no alternative but to order that Syed Alay Nabi being dead, his heirs should be included in the list of contributories, and I order accordingly. However, this is a hard case. Syed Alay Nabi undoubtedly thought that he had ceased to be a member. The managing agents undoubtedly thought the same. There was no demand after the letters to which I have alluded, made upon him to contribute to the company the price of his shares or any part of it, and there was, therefore, no refusal or neglect, by him to comply with the lawful demand of the company.. The question, therefore, arises as to whether I should order interest to be paid on the amounts outstanding. I do not think that this is a case where interest should either be asked for by the liquidator or granted by the Court. The application under sections 184 and 160 is granted.
23...1930 (6) TMI 7 - HIGH COURT OF ALLAHABAD
Dehra Dun Mussoorie Electric Tramway Company Ltd., In re
Winding up - Preferential payments ......
........... It is to be noted that in the equivalent section of the Companies Act of 1929 in England the word revenue is not used at all. Section 264 of the English Act is confined to all cesses taxes, land-tax, property or income-tax. I am satisfied that revenue in this case means income. It is perfectly clear that the rent of the Government Telephone lines and also the charge for trunk calls is the income of the Government, and, therefore, must be taken to be revenue within the meaning of section 230(a) of the Indian Companies Act. I order, therefore, that priority be given to the amount of Rs. 481-5 in the winding up of this company. It is to be noted that as far as the Dehra Dun Electric Tramway Company is concerned, the point raised today is merely an academic one. There are I am informed, sufficient funds to meet all the debts of the company, whether they have to be paid in priority or not, and, therefore, the whole of this claim by the Telegraph Department will eventually be met.
24...1930 (7) TMI 11 - HIGH COURT OF PATNA
Prayan Prasad Versus Gaya Bank & Trades Association Ltd.
Shares Power, to issue of at discount ......
........... t a person in the position of the defendant was liable with regard to unpaid calls, not as contributory, either as present or past member of the company, but as a debtor of the company under the provisions of the articles of association see also Article 28 (Table A). The positions are quite distinct and the fact that the company in the present case could not realize the calls by reason of lapse of time is no answer to the liquidator s claim. As to the third point, it is plain on the terms of section 184 of the Act as well as on the general law that Anant Prasad Varma, appellant No. 3 in Appeal No. 209 of 1928 and Raghubans Sahay, appellant in Appeal No. 213 of 1928 are only liable to contribute to the extent of the assets, if any, which came to their hands from the deceased shareholders Harbans Lal and Bansi Lal and the order of the District Judge must be modified accordingly. With this modification of the order the appeals are dismissed with costs. Scroope, J. mdash I agree.
25...1930 (7) TMI 14 - SIND JUDICIAL COMMISSIONER S COURT
Official Liquidators of the Karachi Bank Ltd. Versus Directors, Manager & Auditors of the Karachi Bank Ltd..
Penalty for false statements ......
........... s report or note below it which is to the effect that in their opinion the balance, sheet is drawn up in conformity with the law and exhibits a true and correct view of the company s affairs. In my opinion, however, the balance sheet does not exhibit a true and correct view of the company s affairs, and accordingly, if the auditors are considered to have merely signed the report or note and not the balance sheet, they have willfully made a false statement in their report which by section 131 (2) has to be attached to the balance sheet. I, accordingly, direct the official liquidator to prosecute the managing director, the manager, the auditors and Messrs. Lokamal Chellaram, M. Misquita and A. B. Fonseca for an offence under section 282 of the Indian Companies Act, and direct that they should bear the official liquidator s costs in this inquiry. No direction is given to the official liquidators to prosecute R. B. Shivratan G. Mohatta who will bear his own costs in this enquiry.
26...1930 (8) TMI 18 - HIGH COURT OF CALCUTTA
Janbazar Manna Estate Ltd., In re
Winding up - Company when deemed unable to pay its debts ......
........... they were entitled to the order prayed. In this case, it is not even admitted that the appointment of directors on April nth is valid, nor has it been shown that since that date the new directors have misconducted themselves. It is conceded that one party on the other holds a majority of the shares and it seems to me that, although this is a private company and the transfer of shares restricted in the first instance to members of the family or their representatives, the ordinary principle of company law must be observed, namely, that the dissatisfied shareholders remedy is to obtain a majority in favour of their views and through such majority elect a new directorate. The practical difficulties may be considerable, but this does not, in my opinion entitle them to the order asked for. I find that the grounds on which the winding up order is sought have not been established, and I dismiss the petition, but in the peculiar circumstances of the case, I make no order as to costs.
27...1930 (8) TMI 19 - HIGH COURT OF BOMBAY
The Calico Printers' Association Ltd. Versus AA Karim & Bros
Authentication of documents and proceedings ......
........... be signed by the party, but where the party is a company and, there fore, unable to sign, it necessarily follows having regard to the words or for other good cause, that the last part of the section always applies in the case of a company, and that the company, therefore, can always authorise some person to sign on behalf of the company. If the company does not choose to do that, it can act under O. XXIX, r. 1, i, e., it can rely on that Order as in fact constituting an agent to sign without the necessity of giving any express authority. In that way O. XXIX, is read as merely permissive and not mandatory. In point of form it is clearly permissive and not mandatory. I think, therefore, that the order of Mr. Justice Blackwell was wrong technically and the plaint was correct. But as this point does not seem to have been taken in the Court below, I think the appeal should be allowed without costs either here or in the Court below. Baker, J. mdash I agree and have nothing to add.
28...1930 (8) TMI 20 - HIGH COURT OF BOMBAY
Dharwar Bank, Ltd. Versus Mahomed Hayat
Trust not be entered on register of members ......
........... t as to the bank not recognising any trust. There is no evidence on the record, bat assume that the bank is registered under the Indian Companies Act, and, therefore, under sections 29 and 33 of the Indian Companies Act the bank is not obliged to recognise a trust, but, that would not prevent the Court from recognising a trust in a suit in which evidence of the trust is forthcoming, and that is done by the Chancery Court in England. I may refer to the case of Binney v. The Ince Hall Coal and Cannel Company 1866 35 LJ Ch 363 14 LT 392 and also to the case of Bank of N.T. Butterfield and Son, Ltd. v. Golinsky 1926 AC 733 95 LJPC 162 135 LT 584 . I find these cases in Dr. Khergamvala s Indian Companies Act, 2nd Edition, p. 48. In these circumstances, I think there is no reason why the plaintiff should not be considered to be the owner of the shares and should not be given the declaration which he seeks. I am of opinion, therefore, that this appeal should be dismissed with costs.
29...1930 (9) TMI 13 - HIGH COURT OF MADRAS
Sabapathi Rao Versus Sabapathi Press Co., Ltd.
Winding up Delivery of property to liquidator, Debts of all descriptions to be admitted to proof, Avoidance of transfer, etc. ......
........... t go out from the amount claimed. Out of a balance of Rs. 3,331-13-6, I authorise payment of that sum less Rs. 500 with interest at 9 per cent. per annum from 1st January, 1927. As regards the sum of Rs. 500 shown against 15th December, 1926, it is described as a hand loan paid to Mr. Venkata Rao, who purported to receive it as the Chairman of the Board of Directors. Whether the liquidator is bound to pay this sum or not, I do not wish to decide at present. Granting the liquidator is not bound to pay this sum from the assets of the company it may be open to the creditor to ask that it should be paid over to him from any amount to be found payable by the company to Mr. Venkata Rao. This point I must reserve for future consideration. The applicant s costs, which I fix at Rs. 150, shall come from the assets. The liquidator may pay himself Rs. 50 for his costs. I also direct that Mr. Gopalaswami Mudaliar be paid from the assets the costs of his application, which I fix at Rs. 50.
30...1930 (9) TMI 15 - HIGH COURT OF RANGOON
Ram Ragubhir Lal Versus The United Refineries (Burma) Ltd.
Directors Power of ......
........... f a doubt as to Behal s position is enough to show (in the words of the proviso) that his appointment was invalid. The question having been raised in proceedings before a Court, I do not think the appointment can be considered to be shown to be invalid until the Court has come to a definite decision on the subject. I do not regard the District Judge s finding on the remitted questions as a decision in this sense It is merely an expression of this opinion for the assistance of this Court, which now has seizin of the case. The result is that this judgment is the first definite decision as to the invalidity of the appointment. The District Court, in its original judgment, did not decide the question, the view taken by the Judge being that in view of section 86 it was immaterial whether the appointment was valid or not. I hold, therefore, that this objection fails. (The remaining portion of the judgment is not material for the purposes of this report). Cunliffe, J. mdash I agree.
31...1931 (1) TMI 16 - JUDICIAL COMMISSIONER S COURT OF SIND
Shewaram Dewanmal Versus Charles M. Lobo
Winding up - Appeals from orders ......
........... d O. XLV, r. 2 of the Civil Procedure Code apply. Section 109 (c) is not applicable to any matter of criminal jurisdiction see section 112, subsection (2) of the Civil Procedure Code, and it appears to me that this is a matter of that nature. The order from which the applicants wish to appeal is an order directing their prosecution for a criminal offence and it is, therefore, more of a criminal nature than of a civil nature. Apart from that, it does not appear to me that this is a case which can be certified as a fit case for appeal under section 109(c) if that section applies. The Court held that the balance sheet was prima facie a false one. This is a matter not of law but of fact. Moreover, this is not a final order as the question whether the offence for which the prosecution is ordered was really committed will be decided by the Magistrate. For these reasons I am unable to grant a certificate that the order is a fit one for appeal and dismiss the applications with costs.
32...1931 (1) TMI 19 - IN THE COURT OF APPEAL
Cousins Versus International Brick Co.
Meeting and proceedings Proxies ......
........... vote in person he is not revoking the proxy but taking a step which obviates the necessity for the proxy being used at all. For these reasons, I agree that the appeal must be dismissed. We have not been asked to consider whether the 36,991 votes in respect of which proxies were given, but purported to be withdrawn before November 3, and in respect of which shareholders had not voted in person, were properly disallowed. Speaking for myself, I think that they ought to have been disallowed. But it by no means follows that, as between the proxy and the shareholder, the proxy in voting in accordance with the power given to him after notice that the proxy was withdrawn, was not committing a breach of duty to his principal in voting. The question is not raised in this case, but I desire to mention the point to show that it has not been overlooked, and to reserve any opinion upon it. Solicitors mdash Bateman and Co., for appellant Clifford Turner, Hopton and Lawrence, for respondent.
33...1931 (1) TMI 20 - HIGH COURT OF MADRAS
MK Srinivasan Versus WS Subrahmanya Ayyar.
Meeting and Proceedings Power of Company Law Board to Order Meeting to be Called, Ascertainment of directors retiring by rotation and filling up vacancies, Directors - Right of person other than retiring director to stand for directorship and Filli ......
34...1931 (10) TMI 15 - IN THE SIND JUDICIAL COMMISSIONER S COURT
Karachi Bank Ltd. Versus JR. Castellino
Winding up Fraudulent preference ......
........... Ch 467 75 LJ Ch 697 95 LT 292 13 Manson 306 22 TLR 708 In re Russell Hunting Record Co. Ltd., 1910 2 Ch. 78 79 LJ Ch. 498 103 LT 57 17 Manson 229 54 SJ 537 In re Washington Diamond Mining Co. 1893 5 Ch 95, and In re W. Blackburn and Co. 1899 2 Ch 725 68 LT Ch 764. 81 LT 520 48 WR 186 7 Manson 47, as showing that the procedure under the English Act is by summons. But it is clear that there is no provision in the Indian Companies Act for a summary method of recovering money paid by way of fraudulent preference. Section 231 merely defines what is a fraudulent preference. Section 185 has no application it refers to contributories, trustees receivers, bankers, agents or officers of the company and provides a summary remedy in respect of such persons but no summary remedy is provided in respect of a creditor to whom payment had been made by way of fraudulent preference. I would, therefore, hold that the present application does not lie. Application dismissed. No order as to costs.
35...1931 (10) TMI 16 - HIGH COURT OF BOMBAY
Ali Mahomed Ghulam Hussain Molubhai Versus The Deccan Match Mfg. Co. Ltd.
Winding up Overriding preferential payments ......
........... protected, inasmuch as it is not his business to see to the application of the money, it being sufficient if he paid it to the agents. I do not myself think that there is any evidence of fraud or collusion, but the appellant or his father was himself a shareholder in the company, and it was his business before he advanced the money to the managing agents ostensibly on behalf of the company, to ascertain from the memorandum and the articles of association whether the managing agents had power to borrow money on behalf of the company. The remarks in para. 6 of the learned District Judge s judgment set forth this position very clearly, and I entirely agree with them. In these circumstances, this appears to be a case in which if the true facts had been before the court, there should have been no judgment. The case falls within the principle of In re Van Laun, Ex parte Chatterton ( supra) and the order of the District Judge should be confirmed, and the appeal dismissed with costs.
36...1931 (10) TMI 17 - HIGH COURT OF LAHORE
The Merchants Ltd., In re
Restrictions on commencement of business ......
........... es of the company which have been proved in this case, namely certain debts alleged to be due to the managing director and on account of rent and printing charges cannot be held to be binding on the company of. In re Otto Electrical Manufacturing Co., (1906) 2 Ch. D. 390 and In re Blair Open Hearth Furnace Co. (1914) 1 Ch. D. 390 at 409. In view of the conclusions arrived at above, it is not necessary to discuss the remaining grounds urged on behalf of the contesting shareholders. The petition is accordingly dismissed. As regards costs, it was urged on behalf of the shareholders that the petitioning liquidators should be made to pay them as the company cannot be held to be legally liable. On the other hand, it is contended for the petitioner that they have acted in good faith and should not be made to suffer for the faults of others. In view of all the circumstances, I think, it will be on the whole equitable to leave the parties to bear their costs, and I direct accordingly.
37...1931 (11) TMI 6 - IN THE COURT OF CRIMINAL APPEAL
R. Versus Kylsant.
Prospectus Registration of ......
........... he verdict of the jury can be supported, and that this appeal must be dismissed. I intended to add, with reference to what took place after the jury had retired and asked a question of the learned Judge, that, in the opinion of the Court, the direction to the jury by the learned Judge was too favourable to the accused, and that he ought to have told them that on this third count it was sufficient if they found an intent to induce persons to subscribe or advance money to the company. As regards the appeal against sentence, we had considered this matter already, and having given the fullest consideration to everything the counsel for the appellant has now urged before us, we are quite unable to accede to the application that there should be any alteration in the sentence which has been passed. The application for leave to appeal against the sentence must also be dismissed. Solicitors mdash Holmes, Sons and Pott, for appellant. The Director of Public Prosecutions, for the Crown.
38...1931 (12) TMI 10 - IN THE CHANCERY DIVISION
City of London Insurance Co., In re
Winding up - Liability as contributories of present and post members ......
........... n the terms for a second and final call of 1 section 6d. That would still have left something like IIs. 6d. callable on the B contributories, and I do not think the order was properly named a final call. It remained open to the Court, if necessary to call up more, and the liquidator might have found himself in great difficulty if after the second call he had found it necessary to call further moneys by reason of the introduction of those words and final. I think a final call means that you are purporting to extract the last possible shilling that can be obtained from the contributories, and not the final call, because when you make it you hope that it will indeed be final. But that is a matter of procedure. I think it is right that he should be able to enforce this call to level up, so far as possible mdash it may not be necessary mdash those persons with those who have not paid. Solicitors mdash Patersons, Snow and Co., for liquidator Reid Sharman and Co., for other parties.
39...1931 (12) TMI 11 - HIGH COURT OF RANGOON
FG. Robson Versus Dawsons Bank Ltd.
Winding up - Meetings to ascertain wishes of creditors or contributors ......
........... uld continue. I notice that the legal adviser was present at the last meeting. I see the Directors of the Bank at the meeting of the 22nd July, were present, was There was also present a Chartered Accountant, and it decided that instead of appointing a separate Chartered Accountant to keep an eye on the affairs of the bank a committee of four depositors should be in charge of that aspect of the management. I express no opinion whether this would be a successful scheme or not, but do say this, that it has to receive the sanction of this court. On consideration of that application the present applicants will have every opportunity of being heard, and in these difficult times, both in political and commercial affairs, I consider that it would be contrary to public policy to compulsorily wind up a substantial company of this character against which no substantial allegations of fraud have been proved before the court. For these reasons I agree that the appeal should be dismissed.
40...1931 (2) TMI 7 - HIGH COURT OF LAHORE
Secretary of State For India Versus Punjab Industrial Bank Ltd.
Winding up - Preferential payments ......
........... l debts due to the Crown are given priority. Under section 230 of the Companies Act certain specified debts alone are given this priority and the priority is extended over the claims of certain secured creditors. In my judgment, section 230 of the Companies Act was enacted to deal especially with the same question as to priority as were dealt with by section 61 of the Provincial Insolvency Act with the object of superseding that section of the Insolvency Act and confining the decision on all such matters to the provisions of section 230 of the Companies Act. In my judgment, therefore, the view taken by the learned Judge in Chambers is correct and, I would, therefore, dismiss this appeal without considering whether or not the claim can be regarded as a debt due to the Crown inasmuch as, admittedly, if it were a Crown debt it does not fall within the purview of section 230 of the Indian Companies Act, Parties to bear their own costs in this Court. Shadi Lal, C.J. mdash I agree.
41...1931 (3) TMI 22 - HIGH COURT OF LAHORE
Buta Singh & Sons Ltd. Versus Peoples' Bank of Northern India Ltd.
Winding up Overriding preferential payments ......
........... is clearly distinguishable, as there the prayer was for stay of a suit which had been brought by an alleged shareholder who had repudiated his share and had claimed re-payment of the money paid, on the ground that the conditions on which the allotment was made had not been fulfilled by the company. The learned Judge after an examination of the facts of that case, found that no good would accrue by staying the action. It is obvious that the circumstances of the present case are wholly different. Another case cited was Amrit Lal Kundu v. Anukul Chandra Das 43 C. 586 34 Ind. Cas. 253 20 CWN 358. In that case, however, the attached property had actually been sold and the sale proceeds brought into the executing Court, before the application was made to the High Court. After careful consideration, I am of opinion, that the application should be granted and proceedings in execution of the decree obtained by the bank against the company should be stayed. Order accordingly. No costs.
42...1931 (3) TMI 23 - HIGH COURT OF LAHORE
Shaw Bros. Versus Army Canteen Board (India).
Winding up - Power of registrar to strike defunct company off register ......
........... s are fully wound up whenever used as in section 217 must not be construed so narrowly and so strictly as to bring about a deadlock in the proceedings and this is explained in n Chapter D mdash T40 at page 143. The words when a company is being wound up voluntarily cover the whole of the proceedings till the actual dissolution. It was, therefore, open to the liquidator, if he thought that the Registrar was not doing his duty, to go to the Court and obtain the necessary order, and it cannot be argued that the sole means of securing the dissolution of the company was the lapse of the necessary period after the registration of the final meeting and that, therefore, it must be presumed that the Registrar s failure to register is equivalent to registration. The appeal must be accepted and the case returned to the trial Court for disposal of the other points involved in the case. Court-fee on appeal will be refunded and other costs will abide the event. Tek Chand, J. mdash I agree.
43...1931 (3) TMI 24 - HIGH COURT OF RANGOON
MA Kureshi Versus Argus Footwear Ltd.
Company when deemed unable to pay its debts ......
........... itor, why, if that were so, he had persisted in prosecuting his winding up petition after the 5th August when he had been paid in full all that was due to him. No satisfactory answer was, or could be, given to this question. In truth and in fact, I am satisfied upon the evidence that the petitioning creditor persisted in his petition to wind up the company, not for the purpose of collecting the debt to which he was entitled, but for the purpose of ruining the company, if possible, and thereby avoiding the obligation that he was under to provide Rs. 7,900 for the balance of the shares which he had agreed with Sirpaul that he would purchase on 31st March, 1931. To my mind it is apparent that this bankruptcy petition was not presented bona fide by the petitioning creditor, and upon that ground also the petition was rightly dismissed by the learned Judge. For these reasons, in my opinion, the appeal fails, and is dismissed with costs, five gold mohurs. Maung Ba, J. mdash I agree.
44...1931 (3) TMI 25 - HIGH COURT OF LAHORE
Punjab Pulp & Paper Mills Ltd., In re
Winding up Suits stayed on winding-up order ......
........... ers do deposit with the Imperial Bank of India, Lahore, Government paper of the market value of a lakh of rupees duly endorsed in favour of the Official Liquidators as security of the loans raised by the Liquidators, and expenses incurred by them up to the date of institution of the suit or to be incurred during the pendency of the suit as stated above. If the suit of the petitioners is decreed and they are found entitled to enforce their alleged security against the assets of the company the amount spent by the Liquidators shall be deducted therefrom. In case, however, the petitioners claim as secured creditors is disallowed the Government paper shall be returned to them and (b)That the result of the suit shall be reported to this court as soon after the decision as may be possible and the decree, if any, passed in favour of the petitioners shall not be executed against the Liquidators without the orders of this court. Parties shall bear their own costs of these proceedings.
45...1931 (4) TMI 17 - IN THE PRIVY COUNCIL
Egyptian Salt & Soda Co. Ltd. Versus Port Said Salt Association Ltd.
Requirements with respect to memorandum ......
........... the intention was effectively carried out by the memorandum. He then finds by inference from the intention of the promoters, which was known to the company, and from the fact that one of the company s main objects was to enter into the agreement in which the restriction was set forth, that the memorandum must be read as if it contained the express words but not exporting from Egypt. Their Lordships cannot accept this interpretation. In their view, the obvious method was not adopted and the memorandum does not effectively carry out the intention, if intention there was, to exclude from the permitted objects of the company the export of salt from Egypt. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed and injunction granted by the Court below dissolved. The appellant company will have their costs here and below. Appeal allowed. Lattey and Dawe mdash Solicitors for the Appellant. Herbert Smith and Co. mdash Solicitors for the Respondent.
46...1931 (4) TMI 18 - HIGH COURT OF PATNA
Bank of Bihar Limited Versus The Secretary of State
Winding up Suits stayed on winding-up order ......
........... eated as essential by the Government for the purpose of proceeding with the execution and it was not the intention of the legislature that the Court should be given discretion to permit proceedings which would have the effect of giving to any particular creditor a priority to which he was not otherwise entitled, and which would have the effect, as in this case, of absorbing all the available assets. I do not mean to say that there may not be exceptional cases in Which the discretion undoubtedly given to the Court may not wisely be exercised. I would, therefore, reverse the decision of the learned Judge. The official liquidator will remain in possession of the property and will distribute the assets of the company in accordance with its statutory obligation. I would allow the appeal of the Bank of Bihar with costs which must be paid by the Local Government, and the Collector will hand over the assets to the official liquidator for distribution. Kulwant Sahay, J. mdash I agree.
47...1931 (4) TMI 19 - IN THE COURT OF APPEAL
R. Versus Registrar of Joint Stock Companies
Forming incorporated company Mode of ......
........... Free State Constitution Act in Ireland, yet it did nothing to alter the meaning of the words Act of Parliament contained in the Act of 1823, section 41. I think, therefore, it is impossible to argue that the Irish Act of Parliament is an Act of Parliament within the meaning of that section and it therefore follows that no Act of Parliament within the meaning of that section has ever been passed authorising the sale of lottery tickets, and as I have already pointed out, as the permission to sell such tickets in Ireland is in terms limited by the Irish Act to Ireland, it follows that the sale in England is as illegal to-day as it was before the passing of the Irish Free State Act. For these reasons, I agree that this appeal must be dismissed, inasmuch as what the parties here have sought to do is to set up a limited company for a purpose which would necessarily be illegal. Solicitor mdash Arthur Benjamin and Cohen, for Appellant Solicitor to the Board of Trade, for Respondent.
48...1931 (5) TMI 24 - HIGH COURT OF CALCUTTA
Damagoria Coal Co. Ltd., In re
Winding up - Preferential payments ......
........... y attention to a late authority which does not appear to have been cited before my learned brother and that is mdash In re H. J. Webb and Co. (Smithfield, London) Ltd. 1922 3 Ch. 369 and which In re Henley and Co. (supra) and the Oriental Bank Cases (supra) were held to be no longer applicable to the case of winding up of a company by reason of the later Companies Act which, as was explained at length, contained provisions overriding the prerogative by which the Crown was bound. On appeal, Food Controller v. Cork 1923 AC 647 at 672 the Judgment of the Court of Appeal was upheld and, in the words of Lord Wrenbury, the Crown is bound to a statutory scheme of administration wherein the prerogative right of the Crown to priority no longer exists. No reasons have been advanced why the petitioner board should proceed in execution and any question of priority under section 230 should be decided in the winding up. The application must be refused. Attorneys for Applicant Dutt and Sen.
49...1931 (5) TMI 25 - HIGH COURT OF ALLAHABAD
Dehra Dun-Mussoorie Electric Tramway Co. Ltd. Versus Jagmandar Das
General provisions with respect to memorandum and articles Effect of memorandum and articles, Execution of deeds, ......
........... herefore, that the mortgage is void. The appellants being the liquidators of the Dehra Dun Mussoorie Electric Tramway Company and all the evidence having been taken in this case, we think that instead of the plaintiffs proving their claim in the course of the liquidation proceedings they should be given a decree for money as against the liquidators. They will thus rank as unsecured creditors and will get their money is due course of liquidation. We allow the appeal and vary the decree of the trial court by granting to the plaintiffs a simple money decree for Rs. 29,773-4-3 to be realized by them in due course of liquidation. Interest at the contractual rate will cease as from the 29th of January, 1926. If there are any surplus assets, interest at 6 per cent, per annum will be payable out of the surplus up to the date of repayment. The appellants will get half the costs of this appeal and those in the court below from the respondents. The respondents will bear their own costs.
50...1931 (5) TMI 26 - IN THE PRIVY COUNCIL
Imperial Bank of India Versus The Bengal National Bank Ltd..
Charges Registration of ......
........... s received or to be received subsequently to April 28, 1927, by the receivers or the liquidators of the Bengal National Bank Ltd., in or towards satisfaction of debts owing to that bank upon the security of property movable, or immovable, and any interest on such debts, whether such sums were or shall be received by way of repayment by the customer or payment by a guarantor or out of proceeds of sale of the security or otherwise and, subject thereto. The costs of the parties in the appeal below should be costs in the application. The costs of both parties of the appeal to His Majesty in Council should be taxed the costs of the Imperial Bank as so taxed being added to its security the costs as so taxed of the respondent bank being included in the costs, charges and expenses of its liquidation. Their Lordships will humbly advise His Majesty accordingly. Morgan, Price, Marley and Rugg mdash Solicitors for the appellant. Sanderson, Lee and Co. mdash Solicitors for the respondent.
51...1931 (5) TMI 27 - HIGH COURT OF RANGOON
Esmail Esoof Moolla Versus Chartered Bank of India, Australia & China
Winding up Debts of all descriptions to be admitted to proof and Overriding preferential payments ......
........... the appellants are entitled to represent the estate of Mariana Bibi without taking out letters of administration or probate, and producing such letters of administration or probate before the liquidator of the company. The learned trial Judge has held against the appellants upon this question. We do not feel that we are in possession of sufficient information as to the facts material for the determination of this question. We do not know the circumstances under which the appellants purported to represent the estate of Mariam Bibi and we are not disposed to decide this question in the present appeal. That is a question which will have to be determined when a claim is made. We are not prepared to express any opinion as to whether the decision of the learned Judge upon that question was correct it remains open and must be re-argued and decided when the proper occasion arises. The respondents are entitled to costs out of the estate, three gold mohurs. Maung Ba, J. mdash I agree.
52...1931 (5) TMI 28 - IN THE PRIVY COUNCIL
Aveline Scott Ditcham Versus James J. Miller
Winding up - Distribution of property of company ......
........... e possession for themselves of these surplus assets, seems to the Board to be a serious matter, and it is necessary, their Lordships think, to call attention to its impropriety, so that for the furture in Newfoundland at all events such irregularities shall be without judicial countenance, and obedience to the statute law in these matters shall be definitely insisted upon. The present case, in its result, at least shows, and properly shows, that if it be of importance that legal interests in property shall be duly assigned, it is perilous to ignore statutory requirements of procedure. Their Lordships accordingly are not able to accept the view of the Supreme Court in this matter. This appeal should, they think, be allowed and the order appealed from discharged. The appellant should have her costs of the appeal and also the costs incurred by her in the Supreme Court. And their Lordships will humbly advise His Majesty accordingly. Solicitors for the appellant mdash Torr and Co.
53...1931 (5) TMI 34 - HIGH COURT OF PUNJAB
Kirpa Ram Versus Bharat Bank Ltd.
Company when deemed unable to pay its debts and Substitution of creditor or contributory for original petitioner ......
........... given effect to by the two banks and I have no doubt that the continuation of the petition for the winding up of the bank would be injurious to the interests of the depositors and shareholders of the bank. In any case, I have no doubt that the petition of Shri Kirpa Ram for the winding up of the bank is mala fide and that being so it would not be just to permit the continuation of that petition by Shri Harish Chandra. In Kirpa Ram v. Shriyans Prosad, Civil Miscellaneous No. 89 of 1951, decided on the 9th of March, 1951, Kapur, J., said The litigation which the plaintiff is carrying on is not a bona fide one. For the foregoing reasons, I refuse to substitute Shri Harish Chandra in place of Shri Kirpa Ram in Civil Original No. 17 of 1951, and dismiss the petition of Shri Kirpa Ram for non-prosecution. On the findings set out above, Civil Miscellaneous No. 15 of 1951, also fails and is dismissed. In the circumstances of the case, I make no order as to costs in these proceedings.
54...1931 (7) TMI 15 - HIGH COURT OF BOMBAY
Motilal Kanji & Co Versus Natvarlal M. Jhaveri
Compromise and arrangement ......
........... nterest, in the eye of the law, in the question how the liquidator, the contributories and the creditors settle their domestic affairs. It may have been convenient in this case mdash the analogy of the Bradford Navigation Co. s case in very close---to let the creditors and the contributories hear for themselves what scheme the appellant proposed for their consideration. But when the parties really concerned in the affairs of the company rejected the scheme, it was no concern of the appellant to appeal to this Court, and say that the contributories and the creditors of the company shall not be allowed to manage their own affairs as they like. Without applying to him the choleric words of the Privy Council to which my learned brother has referred, it may be said that he has nothing to do with what the liquidator, the contributories and the creditors of the company do amongst themselves. I, therefore, agree that the appeal should be dismissed with costs on the preliminary point.
55...1931 (7) TMI 16 - IN THE CHANCERY DIVISION
Latchford Premier Cinema Ltd. Versus Ennion & Paterson
Removal of director ......
........... er based on Article 34 is not a good one. I see no reason in law why the contract of service between the company and its directors should not be terminated by the same means as that by which the contract of service between two individuals may be terminated, and I see no ground in law for saying that where a written contract has been made for service which requires a written notice on either side before it can be terminated, it cannot be terminated by word of mouth by mutual agreement between the parties. That is all that has happened in this case, and, in my judgment, the offices of the defendants were vacated, when on February 10, 1931, they verbally offered to resign, and their offers were accepted by the resolution of the company. Accordingly, there should, in my judgment, be an injunction in the terms of the notice of motion. Solicitors mdash William Charles Crocker, Agent for Wood, Lord and Co., Manchester, for plaintiff. Lewis and Dunkerly Warrington, for the defendant.
56...1931 (7) TMI 17 - IN THE PRIVY COUNCIL
Ripon Press & Sugar Mill Co. Ltd. Versus V. Gopal Chetty
Winding up - Company when deemed unable to pay its debts, Exercise and control of liquidators powers and Meetings to ascertain wishes of creditors or contributors ......
57...1931 (9) TMI 6 - HIGH COURT OF BOMBAY
Maneckji Petit Mfg. Co. Ltd., In re
Winding up Overriding preferential payments ......
........... 0,000, but also the interest due thereon. If the claimants merely relied on the receipt irrespective of that agreement, they could not put forward a preferential claim both in respect of the principal and the interest. I, therefore, hold that the claimants are not entitled to preferential payment. It is common ground that the claimants are not entitled to preferential treatment under s. 230 of the Indian Companies Act. They are, therefore, as much in the position of ft creditor as any one else, and they can only come in with the other creditors, and are entitled to be paid pro rata along with the other creditors on a declaration of the dividend. The application must, therefore, be dismissed. I make no order as to the costs of the claimants. Costs of the liquidator will come out of the assets of the company when taxed as between attorney and client. Counsel certified. Merwanji Kola and Co., attorneys for Petitioner. Ardeshir, Hormusji, Dinshah and Co. attorneys for Respondent.
58...1932 (1) TMI 18 - HIGH COURT OF LAHORE
Modal Bank of India Versus Janwi Narain
Company Membership of, Shares Allotment of and Directors Power of ......
........... ompany as well as to extraneous people dealing with the company and that, therefore, the resolution was validly passed or, at any rate, cannot now to. be objected by Chaudri Janwi Narain, respondent. It may be, as contended by the learned counsel for the respondent, that Chaudhri Janwi Narain was inveigled into this fraudulent affair, and never took any real part into the business of the company. But there is nothing to show that he did not receive the various notices of the meetings etc. sent to him nor the letters appointing him director, etc. and it is too late in the day for him now to contend that, though he never took any steps whatever to repudiate the assignment of shares to him at that time, he could do so now when he is called upon to pay his share money. I, therefore, accept the appeal and hold that the respondent is a contributory and the liquidator is entitled to call upon him for the share money due. The respondent will pay the costs of the appellant throughout.
59...1932 (1) TMI 19 - HIGH COURT OF CALCUTTA
Geoffrey Cornwallis Montgomery Versus Sikdar Iron Works Ltd.
Winding up Liability as contributories of present and past members and Winding up Power of Tribunal to make calls ......
........... ator in that way. He was paying the money direct to the person who had the administration of the company s affairs. In these circumstances it does not seem to me that it would be right for this Court to enforce against him a liability which he has already at the request of this Court s officer discharged by payment made to him in his official name. I quite agree that there are hard cases where nevertheless no attention can be paid to the hardship. But I am not of opinion that this is such a case. In my judgment it would be wrong for this Court to make an order that Mr. Montgomery should pay this amount twice over. In this view, I am of opinion that the appeal should be allowed, the order of the learned Judge as against Mr. Montgomery should be discharged and the application against him should be dismissed with costs before the learned Judge and in this Court. C.C Ghose, J. mdash I agree. Solicitors mdash Sanderson and Co. for the Appellant. Khaitan and Co. for the Respondent.
60...1932 (1) TMI 20 - IN THE CHANCERY DIVISION
Russian & English Bank Versus Baring Bros. & Co.
Winding-up of foreign companies ......
........... nder Part X of the Act notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated. In view of the question whether there are or can be any continuing members of a dissolved company, the petition I assume would have to be presented bj a creditor. At the Bar the defendants limited their claim to recover their costs from the solicitors who issued the writ to the costs of this summons but, having regard to the difficulties involved in ascertaining the effect of the Soviet legislation and to the length of time the defendants allowed to elapse before making this application, I think justice will be satisfied if I make an order to stay the action and say nothing about costs, except that the respondent solicitors must pay those of the Attorney-General. Solicitors mdash Bischoff, Core, Bischoff and Thompson for summons Guedalla, Jacobson and Spyer for respondents Treasury Solicitor.
61...1932 (1) TMI 21 - HIGH COURT OF ALLAHABAD
Swadeshi Cotton Mills Co. Ltd., In re
Allotment of shares ......
........... eement to transfer the business, goodwill, etc., was not treated as a deed of conveyance, and duty on its value was not charged as on a conveyance. In this sense this case actully supports the company. Having considered the agreement as a whole, we are of opinion that it cannot be regarded as deed of conveyance, but is only an agreement for which the duty due under the Stamp Act has been fully paid. It is not for us to consider whether the Registrar of Joint Stock Companies was right or wrong in accepting this agreement as a contract of sale under section 104 of the Indian Companies Act. The allotments of shares were to be made after this agreement was executed. The allotments were in fact made subsequently. We do not think that there is anything in the provisions of section 104 of the Indian Companies Act which requires that a duty payable on a conveyance should be levied on an agreement for the allotment of shares by a company in future. This is our answer to the reference.
62...1932 (1) TMI 23 - IN THE SIND JUDICIAL COMMISSIONER S COURT
Official Liquidators of the Karachi Bank Ltd. Versus Shewaram Dewanmal
Penalty for false statements ......
........... Bank is shaken the whole edifice might totter. Under the circumstances even if those responsible for the issue of the balance-sheet (Ex. 6) indulged in a somewhat Micawber-like obtimism, they should not be held liable criminally. It is a universally acknowledged principle of justice that if from a given set of facts two conclusions are deducible, one favourable to the accused and the other against him, the former should ordinarily prevail. The opponents have remained in suspense for over a year and a half. The case took an inordinately long time in the Magistrate s Court. Not that anybody should be blamed for it, but the fact remains that for so long the opponents had the sword hanging over their heads. It would not be in the interest of public policy to prolong the anxiety of the opponents ad lib. To order further prosecution might, I fear, amount to prosecution. For the foregoing reasons then I would dismiss this application and refuse to order a further enquiry to be held.
63...1932 (10) TMI 11 - IN THE COURT OF APPEAL
Scientific Poultry Breeders Association Ltd., In re
Alteration of memorandum ......
........... y may carry out its objects. Now in the present case there is no such power to be found in the objects clause of the company. On the other hand, there is to be found in clause 4 a provision that the company shall not, except to a certain extent, remunerate the members of the company for services rendered it shall not distribute the profits of the company amongst the members in the words, we find in clause 4 a provision that the objects of the company in whatever other manner they may be carried out, are not to be carried out in that manner none the less, though it is negative in its terms, it is a provision in respect to the objects of the company. I entirely associate myself with the remarks made by the Lord Justice-Clerk and Lord Hunter in the Scottish case of Incorporated Glasgow Dental Hospital v. Lord Advocate, a case which is really, in my opinion, indistinguishable from the present. Appeal allowed. Solicitors mdash Finnis, Downey, Linnell and Chessher, for the company.
64...1932 (10) TMI 9 - HIGH COURT OF LAHORE
Punjab Sindh Chattar Versus Lahore Bank Ltd.
Contributories in case of death of member ......
........... contributories, hereinafter mentioned, his personal representatives, heirs and devisees shall be liable in a due course of administration to contribute to the assets of the company in discharge of the liability of the deceased contributory and such personal representatives, heirs and devisees shall be deemed to be contributories accordingly. It would appear from the wording of this section that the personal representatives of the contributory automatically become liable instead of the deceased contributory. I am, therefore, of opinion that no application for the purpose was necessary and consequently no question of limitation arises. The application made in the present instance was simply intended to bring to the notice of the court the death of Surjan Singh and the court was bound to treat his personal representatives as contributories in his place in accordance with the provisions of section 126 of the Indian Companies Act referred to above. I dismiss the appeal with costs.
65...1932 (11) TMI 10 - HIGH COURT OF MADRAS
Pioneer Mutual Benefit & Friend-In-Need Society Ltd. Versus Assistant Registrar of Joint Stock Co.
General provisions with respect to memorandum and articles - Effect of memorandum and articles ......
........... ciation were offering to lend money to all of a class it would be quite unnecessary to invoke the machinery of the draw. It is because the lucky person gets something more than he could get under ordinary business conditions that it is necessary to select him by lot. Whether this sort of a scheme is one which should be encouraged or not, whether it is likely to mislead the ignorant anxious to raise money or not is not my concern. Whether this falls within section 294-A of the Indian Penal Code is the question I have to consider. If it does it is certainly better to stop it at the threshold rather than to allow the company to proceed along these lines and then wind it up as an illegal company after many thousands of people may be, have entered the scheme. In my opinion it does offend against section 294-A and the Assistant Registrar of Joint Stock Companies was right in refusing to register the articles as presented to him. The motion is accordingly dismissed with taxed costs.
66...1932 (11) TMI 9 - CHANCERY DIVISION AND IN THE COURT OF APPEAL
William Metcalfe & Sons Ltd., In re
Kinds of share capital - Two kinds of share capital ......
........... l dividend expressed to be given to them, therefore, so far as their rights in a winding up are concerned, they are only entitled to the privileges of preference expressly given to them in that respect. I should desire to associate myself with the observation that was made by Farwell, L. J., in the case of Will v. United Lankat Plantations Co. He was dealing with a somewhat similar question to this and he says (81 L. J. Ch., at p. 723 (1912) 2 Ch., at p. 580) To my mind the considerations affecting capital and dividend are entirely different. The preference given to capital is in the winding up, and the preference claimed to be given to dividend here is in a going concern, and I do not think that you can reason from what will happen to capital in a winding-up what ought to happen to dividend while the company is a going concern. To my mind the converse of that proposition is directly applicable to the present case. For these reasons I agree that this appeal must be dismissed.
67...1932 (12) TMI 6 - IN THE PRIVY COUNCIL
Hansraj Gupta Versus Official Liquidators of the Dehra Dun Mussourie Electric Tramway Co., Ltd.
Winding up - Payment of debts due by contributory and extent of set off ......
........... hen the agreement under which it was paid was discovered to be void, and that this discovery was not made until the litigation which culminated in the judgment of the 14th May 1929, so that this right never became time-barred. Their Lordships cannot accede to this contention. In the absence of special circumstances (and none exist here) the time at which an agreement is discovered to be void within the meaning of section 65 is the date of the agreement, viz., the 13th September 1922 (see Annada Mohan Roy v. Gour Mohan Mullick 1923 I.L.R. 50 Cal. 229). Their Lordships are of opinion that this appeal should be allowed and that the decree of the 14th May, 1929, should be set aside and that in lieu thereof a decree should be made dismissing the application of the liquidators with costs and they will humbly advise His Majesty accordingly. The respondents must pay the appellants costs of this appeal. Solicitors W.W. Box and Co. for appellants. Gardew, Smith and Ross for respondent.
68...1932 (2) TMI 18 - IN THE CHANCERY DIVISION
Lee Behrens & Co., In re
Requirements with respect to memorandum and Meetings and proceedings - Annual General Meeting ......
........... an desired but this is pure speculation, and the liquidator, as representing the company it its corporate capacity, is entitled to insist upon and to have the benefit of the fact that even if a general meeting could have sanctioned what was done, such sanction was never obtained. Individual assents given separately may preclude those who give them from complaining of what they have sanctioned but for the purpose of binding a company in its corporate capacity individual assents given separately are not equivalent to the assent of a meeting. The company is entitled to the protection afforded by a duly convened meeting, and by a resolution properly considered and carried and duly recorded. All of which is peculiarly appropriate to the present case. In my opinion, the rejection of this proof by the liquidator was quite right, and I must therefore dismiss this summons with costs. Solicitors mdash Billinghurst, Wood and Pope, for applicant W.W. Young, Sons and Ward, for liquidator.
69...1932 (2) TMI 19 - HIGH COURT OF RANGOON
Dawson Versus Hormasji
Meetings and Proceedings Chairman of Meeting and Compromise & arrangement. ......
........... upon a consideration of the matters raised in the petition for two reasons, (1) that the petitioners had no locus standi to present the petition and (2) that, having regard to the order of Sen, J., the court ought not to exercise its powers of revision unless and until the Chairman of the meeting has given his decision as to the admissibility of the proxies that have been tendered. I do not propose, and for the purpose of deciding these appeals it is unnecessary, to consider whether any of the proxies tendered at the meeting were admissible or not. At this stage of the proceedings it is premature for the court to consider or determine that question. We have decided that the court is entitled to entertain the appeals, and that being so, all parties to the appeals consent to the appeals being allowed, and the order from which the appeals are brought set aside. The costs of the liquidators will be defrayed out of the funds of the Bank, five gold mohurs. Mya Bu, J. mdash I agree.
70...1932 (2) TMI 20 - HIGH COURT OF ALLAHABAD
Bishambhar Nath Versus Agra Electric Stores Ltd.
Winding up - Powers and duties of liquidator ......
........... have allowed interest from the date of forfeiture to the date of suit. We are of opinion that there is substance in this plea. There was no contract claim upon which the claim for interest is based. In our opinion the court of first instance was right in holding that no interest was claimable after the date of forfeiture and before the suit, in the absence of any provision of law or contract. The lower appellate court has held that under Article 14, Table A, interest was payable, but in our opinion interest that is payable under Article 14 is interest as a share-holder and the defendant ceased to be a shareholder of the company on the date when the share was forfeited. See also Stocken s Case 1868 3 Ch. App. 412 37 LJ Ch. 230 17 LT 554 16 WR 322 . We therefore modify the decree of the lower appellate court and restore the decree of the court of first instance. Parties will pay and receive costs in proportion to failure and success, in this Court and the lower appellate court.
71...1932 (2) TMI 21 - HIGH COURT OF LAHORE
Mumtaz Bank Ltd., In re
Winding up Application for and Right to present winding-up petition where company is being wound-up voluntarily or subject to courts supervision ......
........... Bank, Limited, be wound up by the Court. I appoint Messrs. Billimoria and Co., Auditors and Accountants and Mr. Shambhu Lal Puri, B.A., Bar-at-Law, and Advocate High Court, Lahore, as joint official liquidators of the company. I fix the remuneration of the liquidators at 4 per cent. on realizations and 3 per cent. on disbursements, which is the rate fixed by the shareholders in the meeting held on the 6th of September, 1930, when they decided that the company should go into voluntary liquidation and which is by no means excessive having regard to the meagre assets of the company and the amount of work which the liquidators will have to do. The remuneration fixed above shall be shared equally by the two joint official liquidators. I also order that under section 164 of the Act, all further proceedings in this liquidation be taken in the Court of the District Judge, Lahore. Having regard to all the circumstances, I leave the parties to bear their own costs of these proceedings.
72...1932 (2) TMI 23 - HIGH COURT OF CALCUTTA
Pabna Dhanabhandar Co. Ltd. Versus Foyez-Ud-Din Mia
Winding up - Liability as contributories of present and post members and Penalty for false statements ......
........... ause of action against them. In this view of the matter the question of limitation does not arise and it is not necessary to discuss it. I find I have omitted to refer to the preliminary objection urged on behalf of the respondents on the ground that these appeals are incompetent, the amounts claimed being below Rs. 500, and the suits being, so it is said, of a nature cognizable by a Court of Small Causes. In view however, of the provisions of section 159(2), Companies Act, and of the definition of the term contributory in section 158 of that Act I am of opinion that the preliminary objection is without any substance and I have accordingly considered and decided the appeals on the merits. The appeals are dismissed with costs and the judgment and decrees of the lower Appellate Court are affirmed. Separate costs are awarded to the respondents in respect of each of the two hearings of the appeals in this court, viz., the former hearing before Coming, J., and the present hearing.
73...1932 (3) TMI 15 - HIGH COURT OF MADRAS
Lakshmana Mudaliar Versus Emperor
Annual Return Penalty for not filing and Balance sheet Default in filing copies of ......
........... may be mentioned the well known Privy Council case in Subrahmania Ayyar v. King Emperor 25 Mad. 61. I would therefore hold that in any case the misjoinder of parties had vitiated the trial. In the light of the above it is hardly necessary to deal with Cr. R.C. No. 648 put in by the 4th accused and the Bank, 5th accused, represented by its liquidator, T.A. Doss. With regard to this I may say that this liquidator has failed to prove his status. In the Fort St. George Gazette dated 31st January, 1931, three liquidators were appointed and he says that two of those resigned and the third appointed petitioner in his place. But he failed to show me any authority for one liquidator appointing another in his place. I consider therefore that he has no locus standi. As the grounds taken by the 4th accused are the same as those taken by the other accused, this petition must also be allowed. In the result the convictions are set aside and the accused acquitted. The fines will be refunded.
74...1932 (3) TMI 16 - HIGH COURT OF MADRAS
Universal Mutual Aid & Poor Houses Association Ltd. Versus AD Thoppa Naidu
Winding up Company when deemed unable to pay its debts ......
........... 1844, entitled an Act for sup pressing all lotteries not authorised by Government, declared unauthorised lotteries to be common nuisances. But it was repealed by Act XXVII of 1870 which amended the Indian Penal Code by introducing section 294-A. The illegal aspects of a lottery, therefore, have to be found in section 294-A, and consist in the keeping of any office or place for the purpose of drawing any lottery not authorised by Government or in publishing such lottery. Theye can, I think, be no doubt that the company in keeping an office, as it does, for the conduct of this lottery, and in publishing in its Articles and prospectus the scheme of the lottery, is acting in contravention of section 294-A. The business at least a very substantial part of it, which it is carrying on is consequently an illegal business and such being the position, the case of In re International Securities Corporation (supra) is good authority for ordering the compulsory winding up of the company.
75...1932 (3) TMI 17 - HIGH COURT OF LAHORE
Haribans Prasad, Ayodhya Prasad Versus National Sugar Mills Ltd.
Winding up Delivery of property to liquidator ......
........... nt of the Official Liquidator, I order the appellants to deposit within one month from this date the aforesaid sum in the Imperial Bank of India, Delhi, to the credit of the District Judge, Delhi. The amount shall be kept in a fixed deposit in the name of the District Judge, and on the adjudication of the claim of the appellants as lien-holders it shall be paid to whichever party is found entitled to it. Having regard to all the circumstances I leave the parties to bear their own costs in this Court. Both Counsel have been directed to cause their respective clients to appear before the District Judge, Delhi, on the 4th of April, 1932, when the learned Judge will fix a date in the following week for framing the necessary issues. He shall then adjourn the hearing to a suitable date in the month of May, 1932, when evidence for both parties shall be recorded from day to day. The Assistant Registrar is directed to take steps to transmit the records to the District Judge forthwith.
76...1932 (4) TMI 10 - IN THE CHANCERY DIVISION
William C. Leitch Bros. Ltd., In re.
Winding up Liability for fraudulent conduct of business ......
........... pect of the sum of pound 6,000, being a part of the debts or other liabilities of the company, and I shall leave it to some further application to determine the persons who are to have the benefit of anything that may be recovered as a result of the declaration. I shall also make a declaration that the respondent s liability as a director under that declaration is to be a charge upon the debenture which, I understand, is still held by him. Finally, his Lordship dealt with the claims for misfeasance and made an order that the respondent should pay to the liquidator pound 260, the amount of the goods which he removed while acting as manager for the receiver pound 1,300, the amount which he received while acting as manager for the receiver also the sums of pound 500, pound 684 6s. 8d. and pound 154 respectively, with interest thereon as claimed by the summons. Solicitors mdash Bernard Kuit and Co., Manchester, for liquidator Harry Finklestone, Manchester, for respondent director
77...1932 (4) TMI 9 - HIGH COURT OF LAHORE
General Relife Association Versus Crown
Company Incorporation of ......
........... hat at present there is nothing to justify the work of the company being suspended altogether. It is urged that the company has to submit balance sheets, etc., to the Registrar, Joint Stock Companies, and that its daily work cannot be carried out if all its books are in the possession of the Police who do not allow access to the said books to the officers of the company. As regard this, I have directed the learned Government Advocate to make enquiries as to what reasonable facilities the Police are prepared to offer to the petitioners and the case will come up for hearing next Friday when orders will be passed. (The case came on for further hearing and the learned Judge passed the following Order.) The parties agree that a clerk or clerks of the company may to go the Police Station, Old Anarkali, between the hours of 10 A.M. to 4 P. M. and take copies of the entries in the registers taken by the Police. Reasonable facilities will be given to secure compliance with this order.
78...1932 (5) TMI 6 - IN THE CHANCERY DIVISION
Contal Radio Ltd., In re
Compromise & arrangement and Winding up - Arrangement when binding on company and creditors ......
........... under which a majority can bind a minority. An opportunity ought to be given to the creditors to pass a scheme of arrangement, if they can do so, under section 153 of the Act, and the proper course is to let the petition stand over for a period which will enable that to be done. If a scheme is not passed, a compulsory order will be made upon the petition. Accordingly it was ordered that the petition should stand over for a fortnight to enable the creditors to pass a scheme of arrangement. May 9. mdash It was stated to the Court that a summons had been taken out for leave to convene a meeting of creditors under section 153 of the Companies Act, 1929. The Court thereupon ordered that the petition should be adjourned until the first petition day of the following sittings, thus enabling the creditors to consider a proposed scheme under section 153 of the Companies Act, 1929. Solicitors mdash Cochrane and Cripwell for the Petitioner G. Edmund Hodgkinson for the Respondent Company.
79...1932 (6) TMI 10 - HIGH COURT OF RANGOON
Tan Waing Versus Bo Hein
Associations and partnerships exceeding certain numbers Prohibition of ......
........... hat would be the result? Clearly the members would lose the amount of their contributions. Suppose the business was carried on at a profit, what would be the result? The members would receive back the contributions that they had made for three years. Unless the business was carried on at a profit the members would lose all the money that they had contributed for the purpose of the Society. In these circumstances it appears to me that this association was formed inter alia for the purpose of carrying on a money-lending business that had for its object the acquisition of gain by individual members of the society. If that be so, it follows that the Society falls within section 4, Companies Act, and as it is admitted that the number of its members is 124, and that it is not registered as provided by law, the suit must fail. The result is that the appeal is allowed, the decree of the District Court set aside, and the decree of the Sub-Divisional Court restored. No order for costs.
80...1932 (6) TMI 11 - HIGH COURT OF LAHORE
Lal Chand Versus Official Liquidator of The Punjab United Bank Ltd.
Winding up Appeals from orders ......
........... agar. The order for their examination, as I have already stated, was passed in the end of the year 1929 and was communicated to the appellants at any rate before the expiry of the year 1930. If they wanted to protest against that order by an appeal or otherwise, they should have done so within the time prescribed. Mr. Mool Chand for, the appellants contends that time against his clients began to run from the last order passed by the District Judge refusing the application of his clients on the 18th December, 1931. I am unable to agree with this contention. This order did not direct the examination of the appellants. It was not an order made under section 196 of the Indian Companies Act. The order under that section had already been made in December, 1929 and an appeal lay only against that order. This appeal is clearly barred by time. I dismiss it but as the objection as to limitation was not raised by the respondent, I leave the parties to bear their own costs in this Court.
81...1932 (7) TMI 10 - HIGH COURT OF RANGOON
Lawrence Dawson Versus J. Hormasji
Compromise & arrangement, Winding up - Appeals from orders and Power of Supreme Court to make rules ......
........... I incline also to think that the onus of showing that any scheme is unreasonable would pritna facie fall on the objectors. I approve of the substantial reduction in debenture interest mentioned by my Lord and also of the slight reduction in the rate of interest on the new preference shares. Such a reduction will in my opinion, give greater freedom to the committee and to the liquidators in the furtherance of their new arrangement and an increased power to deal with unforeseen eventualities because the margin of liquid annual finance would be substantially enlarged. There are objections to every scheme and I can see objections in this one here, but they are not insuperable or fundamental objections and I, therefore, prefer this constructive compromise to the compulsory liquidation put forward by those who raise their objections in such a half-hearted way. For these reasons I agree with the modified sanction proposed by the learned Chief Justice and that the appeal be allowed.
82...1932 (7) TMI 8 - IN THE PRIVY COUNCIL
Hansraj Gupta Versus NP. Asthana
Winding up Liability as contributories of present and past members ......
........... aced on the register in respect of the shares, but after the winding up his liability in respect of the shares arose ex lege and not ex contractu. It was conceded that the position of the executors was no better than that of the testator. In their Lordships opinion, this point disposes of the first appeal, which should accordingly be dismissed. This view renders it unnecessary to consider whether the application was out of time. Their Lordships, however, think it right to state that, as at present advised, they are unable to understand how the period of 30 days mentioned in Rule 58 of the Rules before mentioned can have commenced to run unless and until the notice contemplated by Rule 57 had been served. This admittedly was never done. Their Lordships will humbly advise His Majesty that this appeal (No. 127 of 1930) should be dismissed. The appellants will pay the costs of the appeal. Solicitors mdash WW Box and Co. for the Appellant. Garden Smith and Ross for the Respondent.
83...1932 (9) TMI 11 - HIGH COURT OF MADRAS
Official Liquidator, Bellary Electric Supply Co. Ltd. Versus Kanniram Rawoothmal
Shares Allotment of ......
........... petitioner interest at 6 per cent. from October 14, 1925, and the appellant contends that interest should be payable only from the date of demand. We think that this contention must prevail. The law relating to the payment of interest is dealt with in Nanchappa Goundan v. Ittichathara Mannadiar (1930) 127 Ind. Cas. 630 ILR 53 Mad. 549.the effect of which is that the provision of the Interest Act are all comprehensive and interest can only be allowed in accordance therewith. Applying that principle it is clear that this payment of Rs. 1,400 cannot be construed to be a debt or sum certain payable at a certain time mdash by virtue of a written instrument. It is payable otherwise (i.e., as money had and received) and interest is, therefore, only recoverable from the date of demand, that is, petition dated 27th July, 1928. We, therefore, vary the decree of the lower Court to this extent and with this variation dismiss this appeal with costs here and as decreed in the lower Court.
84...1932 (9) TMI 12 - HIGH COURT OF BOMBAY
DK. Jhalani Versus HH. Wadia
Winding up - Liability as contributories of present and post members ......
........... third calls, Exs. E and J, which specify the persons to whom, and the place at which, they were to be paid, and which were sent to the appellant, were signed by the agents of the company, and each of them bears upon the face of it the words by the order of the Board, and I think that in the absence of any evidence upon the point the Court is entitled to assume that these notices were sent out by the agents of the company with the sanction of the directors, and that the directors had in fact appointed the persons and the place, and that is the assumption which I make. In my opinion, therefore the requirements of the articles in this case had been complied with and the appellant s shares were duly forfeited. It follows that the company were not entitled to rescind the forfeiture without the consent of the appellant see Larkworthy s case and his name ought not to have been placed upon the list of contributories. Accordingly I agree that this appeal should be allowed with costs.
85...1933 (1) TMI 18 - KING S BENCH DIVISION
Stead Hazel & Co. Versus Cooper
Winding up Disclaimer of onerous property, etc., after commencement of ......
........... ast between section 54 of the Bankruptcy Act, 1914, which refers to the personal liability of the trustee in whom the assets of the bankrupt are by the statute vested, and section 267 of the Companies Act, 1929, which does not refer to any personal liability of the liquidator in whom the assets of the company are not vested, goes to show that it was not intended, by conferring the right of disclaimer upon the liquidator, to affect his personal rights or liabilities. If such had been the Intention, the statute could not have provided, as it does by section 267, sub-section 2, that the disclaimer shall not affect the rights or liabilities of any other person than the company, since the disclaimer would be affecting the personal liability of the liquidator by determining it. I therefore give judgment for the defendant, with costs. Solicitors mdash Layton and Co., Liverpool, for Plaintiffs Hill Dickinson and Co., agents for J. Arnold Brierley and Robinson, Oldham, for D efendant.
86...1933 (1) TMI 19 - IN THE CHANCERY DIVISION
Walters Deed of Guarantee, In re
Requirements with respect to memorandum ......
........... to rights against the company quite different from the right which a preference shareholder has to payment of dividends out of profits, according to the company s articles of association and distinct from the right of a preference shareholder in a winding-up. In my opinion, therefore. Clause 7 is wholly ultra vires and void. On the other hand, preference shareholders are not entitled to be paid twice over any part of dividends which the defendant has provided for distribution among them. I therefore declare that Clause 7 is wholly ultra vires and void, and that this declaration is without prejudice to any claim of the defendant to be subrogated to the rights of preference shareholders of the company as to payments which may be made in regard to preference dividends for the period of three years from May 30, 1928, or in respect of any rights of preference shareholders in a winding-up. Solicitors mdash Samuel Price, Sons and Robertson for plaintiffs Lucien Fior, for defendant.
87...1933 (1) TMI 20 - IN THE COURT OF APPEAL
Matthew Ellis Ltd., In re
Winding up Effect of floating charge ......
........... in the partnership firm negotiating on its behalf. Then we find this, that Mr. Tipper, the debenture holder, has parted with pound 1,000 odd of cash out of his private estate, and that that cash had been handed over by the company to the firm of which indeed Mr. Tipper is a partner, but of which he is not the only partner, and in which he does not hold the only interest, or even a controlling interest, so far as I know. Why in those circumstances it should be said that this was merely a subterfuge to make it appear there had been a payment in cash, when there was in fact no payment in cash, I do not know. The circumstances appear to me to point strongly in favour of the conclusion that here there was in truth and in fact, in substance and not merely in form, a payment of cash by Mr. Tipper to the company. For these reasons I have come to the conclusion that this appeal should be allowed. Solicitors mdash Stibbard, Gibson and Co., for appellant Syrett and Sons, for respondent.
88...1933 (1) TMI 21 - HIGH COURT OF ALLAHABAD
Gur Prasad Kapoor Versus Rameshwar Prasad
General provisions with respect to memorandum and articles - Effect of memorandum and articles ......
........... se, therefore, is no authority for the case before us. For these reasons I consider that the number of directors was validly altered by the resolution of the general meeting of February 14, 1932. By the Court mdash We grant an injunction to the plaintiffs directing the defendants to refrain from interfering with the discharge by the plaintiffs 1 to 6 and 8 of their duties, and with the exercise by them of their powers, as directors of the Ramchand Gursahaimal Cotton Mills Co., Ltd., and directing B. Panna Lal Burman, defendant 8, to refrain from performing the function of the general manager. The defendants are further directed to refrain from interfering with R. B. Vikramajit Singh, plaintiff 8, in performing the functions of the chairman of the board of directors. B. Gur Prasad, defendant 1, is directed to refrain from acting as chairman of the board of directors. Subject to the directions set out above, we confirm the order appealed from and dismiss this appeal with costs.
89...1933 (10) TMI 1 - CEGAT, NEW DELHI
EASTERN MINERALS Versus COLLECTOR OF CENTRAL EXCISE, INDORE
........... . 537 wherein it was held that crushing and sieving of Pyrites is not a process of manufacture. In this case the main point that arose for consideration was whether the premises covered by the definition of lsquo Mine rsquo under the Mines Act, 1952 could be deemed as a lsquo factory rsquo under the Factories Act, 1948. Hence this decision also cannot be of any assistance to the appellants. 10. In view of the above discussion we rely on the decision of the Tribunal in the case of Associated Soap Stone Distributing Co. (P) Ltd. v. Collector of Central Excise (supra) and the judgment of the Madhya Pradesh High Court in the case of Kher Stone Crushers v. District Inds. Centre (supra) and hold that grinding or crushing or grinding of lumps of Diaspore and Prophylite into powder or smaller lumps of specified sizes amounts to manufacture in terms of Section 2(f) of the Central Excises and Salt Act, 1944. 11. In the result the cross objection is allowed, and the appeal is dismissed.
90...1933 (10) TMI 12 - IN THE CHANCERY DIVISION
Barry & Staines΄ Linoleum Ltd., In re
Powers of court to grant relief in certain cases ......
........... son of an incautious vote, has made himself liable to pay moneys to a company by reason of a contract entered into, it would not be right for the Court to render proceedings by the company or its liquidator abortive without information as to the views of the creditors or shareholders. In the present case the company is solvent, and it may be that the shareholders would be unwilling to direct proceedings to be brought against the petitioner in respect of sums paid to him as a director to which he was not entitled. But I have no information with regard to that matter and, accordingly, while granting relief under the first part of the prayer of the petition and relieving him from any liability for fines or penalties incurred by his having acted as a director without being qualified, I do not propose to grant him relief under the second part of the prayer in respect of his having drawn or received remuneration while so acting as a director. Solicitors mdash Linklalers and Paines.
91...1933 (10) TMI 13 - HIGH COURT OF ALLAHABAD
Dehra Dun Mussourie Electric Tramway Co. Ltd., In re
Winding up - Preferential payments ......
........... e creditors who have had contracts with the company for the payment of interest on outstanding debts. The point is also covered by authority. I have been referred to the case recorded in Devi Ditto, Mal v. Official Liquidator of Amritsar Bank Ltd., which is a Bench decision of the Lahore High Court. It was there decided that the creditors should be given interest on outstanding debts before the preferential shareholders could get anything. This is also the rule in England. I decide, therefore, that the creditors must get interest. The only question which remains is the question of rate of interest. I am not bound to give the creditors the contractual rate but, I think, in most cases where there has been a contract, I should give 6 per cent. provided the contractual interest is equal to or greater than this rate. Where there has been no contract for interest, I think, a rate of 4 per cent. will meet the case. I direct the liquidators accordingly to pay interest at these rates.
92...1933 (11) TMI 15 - HIGH COURT OF ALLAHABAD
Bir Chand Versus John Bros.
Winding up Avoidance of transfer, etc., after commencement of ......
........... his use and upon a consideration which has failed. If Seth Bir Chand is so advised, he may possibly lodge a claim for this amount in the liquidation. Whether such a claim would be successful or not is a matter on which at present I express no opinion. Before the rectification is effected in favour of the debenture holders, they must, of course, pay to the liquidator Rs. 1 per share for the registration of the transfer. Under the trust deed, although the charge only applied to 3,841 shares, the actual amount now is 3,843 shares, and as the debenture holders have a charge on all the assets of the Agra United Mills, the total amount of the shares in the possession of the Agra United Mills being 3,843, the debenture holders will be entitled to this number of shares. I think the successful applicant is entitled to his costs from Seth Bir Chand, which I fix at Rs. 150. The decree will not be prepared until the successful applicant has paid the proper stamp duty on his application.
93...1933 (11) TMI 16 - IN THE JUDICIAL COMMISSIONER S COURT OF NAGPUR
Bisanch & Champalal Ginning Factory Versus Govinda Vishnusa
Associations and partnerships exceeding certain numbers Prohibition of ......
........... partnership created by the operation of law, so that the individual members are governed by the principles of Hindu Law and not by the Contract Act, then I am of opinion that the individual members are merely sub-partners in any agreement made on behalf of the family and that the joint family consisting of these members should be reckoned as one person for the purposes of Section 4, Companies Act. The appeal is therefore allowed and the case is remanded to the first Court for a decision of the question which of the 48 persons mentioned in the pleadings are partners, as opposed to sub-partners to the agreement. The parties will be at liberty to make fresh pleadings and to adduce evidence on this point. If it is held that more than 20 of these individual members are partners to the agreement, then the present suit must fail. A certificate will issue for the refund of court-fees paid in this Court. Costs in this Court and in the lower appellate Court will be costs in the cause.
94...1933 (11) TMI 17 - HIGH COURT OF ALLAHABAD
Indian States Bank Ltd., In re
Winding up - Preferential payments ......
........... ion 210 of the Act of 1908 and to section 231 of the Indian Companies Act. In that case it was decided that when a voluntary winding up is followed by a compulsory winding up then for the purposes of the fraudulent preference section, that is section 164 of the Act of 1862 and section 210 of the Act of 1908, the act of bankruptcy is the presentation of the petition, that is, the presentation of the petition for a compulsory winding up. This case however, was considered in the case of the Havana Exploration Co., Ltd. There the learned Master of the Rolls came to the conclusion that the wordings of the two sections were completely different and that a decision on the fraudulent preference section could not be taken to be an authority on the preferential claim section. I, therefore direct the official liquidator to treat the claim for preference by the servants of the company in liquidation as if liquidation commenced from the date of the resolution for the voluntary winding up.
95...1933 (11) TMI 20 - IN THE CHANCERY DIVISION
Dorman Long & Co., In re
Compromise and arrangement ......
........... of the report of the committee so appointed. His Lordship then held that in Dayman s case, so far as the shareholders were concerned, the resolutions were carried by proper majorities, and should be approved, but that, so far as the stockholders were concerned, the circular was misleading and the scheme could not be confirned in the South Durham Case, in view of the improper rejection of proxies, the resolutions were not passed by the requisite majorities. His Lordship considered that in the South Durham case and in the case of the Dorman Loiig stockholders fresh meetings should be summoned. Solicitors mdash Freshfields, Leese and Munns, for Dorman Long and Co. G. Houghton and Son, for opposing debenture holders Lincoln and Lincoln, for a group of debenture holders Johnson, Weatherall, Sturt and Hardy, for South Durham Co. Crossman, Black and Co., agents for Jos. H. Smith and Graham,, West Hartlepool, for an opposing shareholder Nicholl, Manisty and Co., for a mineral lessor.
96...1933 (12) TMI 22 - IN THE CHANCERY DIVISION
Russian and English Bank Versus Baring Bros. & Co. (No. 2)
Winding-up of foreign companies ......
........... the action to continue. In my judgment, from the moment when Eve, J., made his order in January, 1932, the action in which the present motion is made was dead mdash dead because there was no plaintiff to maintain it and I can see nothing in the language of section 338 which re-animates the plaintiff or avoids the dissolution brought about by the foreign law. Therefore, there is to-day no action in which the present application can be made. It is dead for all purposes. That is all that it is necessary for me to say to dispose of the present application. I dismiss the motion with costs. Solicitors mdash F.M. Guedalla and Co., for applicants Bischoff, Coxe, Bischoff and Thompson, for respondent Treasury Solicitor, for Attorney-Genera.
97...1933 (12) TMI 23 - HIGH COURT OF BOMBAY
Bhajekar Versus Shinkar
Directors Power of ......
........... uce such a remedy ought to be checked for the benefit of the community. The demurrer, therefore, must be allowed. My finding on the issue is in the negative. In the result the suit must be dismissed with costs. Notice of motion dismissed with costs. The costs of notice of motion to taxed. There will be three separate sets of costs of the suit and the notice of motion, one for the 6th defendant company, one for the 7th defendant company, and one for defendants 1 to 5. The plaintiffs to pay the costs of and incidental to the meeting held on September 10,1933, in pursuance of the order of August 3, 1933, to the 6th defendant company. The Commissioner to return to the 6th defendant company the proxies and papers relating to the meeting. Payne and Co., Attorneys for plaintiffs Samant and Co., Attorneys for defendants No. 1-5 Motichand and Devidas, Attorneys for defendant No. 6 Craigie, Blunt and Caroe, Attorneys for defendant No. 7 and Payne and Co., Attorneys for defendant No. 8.
98...1933 (12) TMI 24 - IN THE CHANCERY DIVISION
Beni Felkai Mining Co., In re.
Winding up Power to order costs and Costs of voluntary winding up ......
........... self out of the assets of the company at a time when he had no reason to suppose that there would be an insufficient amount available for the payment of the costs, charges and expenses incurred in the winding-up. In my opinion, it is impossible on the materials before me to fix exactly the date as from which the remuneration of the liquidator ought to be inquired into but I think I am justified, on the whole, in making an order that the liquidator s remuneration received by him or paid to himself before December 8, 1930 mdash that being the date of the assessment of pound 487 16s. mdash shall not be disturbed. I propose to direct an inquiry as to what remuneration is proper to be allowed to the liquidator for the period subsequent to that date in respect of services rendered which may fairly be regarded as necessary for the preservation of the property belonging to the company. Solicitors mdash Solicitor of Inland Revenue, for the applicant Rowney and Co., for the respondent.
99...1933 (12) TMI 25 - IN THE SIND JUDICIAL COMMISSIONER S COURT
Naraindas Lahoredas, In re
Winding up - Liability as contributories of present and post members, Shares Power, to issue of at discount and Company Membership of ......
........... f the managing agents. It is the greed of both these persons which has brought them to grief. I hold that all these opponents are liable to have their names entered as contributories qua signatories to the memorandum of the company and I direct that names be entered as such. In the circumstances, there is no occasion for me to consider the further question of the liability of these opponents qua directors. I pass the same order in respect of opponents Nos. 2,5, 6, 7, 8 and 11 who are ex parte and who are also signatories to the memorandum. Opponent No. 13 is not a signatory to the memorandum. He is ex parte and therefore there is nothing on the record to show that he is not liable and I order that his name be also entered in the list of contributories. The official liquidator will have his costs from Opponents Nos. 1, 3, 4, 10, 12, but Opponents Nos. 1 and 3 will not be liable for the costs of the commission which was not issued in consequence of any objection raised by them.
100...1933 (12) TMI 26 - HIGH COURT OF MADRAS
Universal Mutual Aid & Poor Houses Asso. Ltd., In re
Requirements with respect to memorandum ......
........... e Advocate-General hellip Rs. 500 His Junior hellip Rs. 150 (Claimant) Messrs. S. Parthasarathy and Tiruvenkatachari hellip Rs. 300 and 150 Mr. Sivaprasad hellip Rs. 300 Counsel for Liquidator hellip Rs. 300 His Junior hellip Rs. 150 Certificate-holders and bond-holders, each ... Rs. 76 All these sums will be paid to the Counsel direct without any further orders out of the estate. If the liquidator has already agreed another fee that fee is to be paid. I do not part with this case without expressing my pleasure that the Advocate-General was able to bring to my attention the great help he had received from Mr. Sivaprasad, and that Mr. Brooke Elliott was able to express an equal indebtedness to Mr. Nagaraja Sastri. These encomiums, well earned, are, I am sure, good hearing to the young men themselves and I think come gracefully, from the leaders who thus recognise an indebtedness to their juniors. The unknown X on page 30 may be taken as ascertained at the figure of Rs. 60,000.