TMI Blog2000 (10) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant No. 1 for compliance with the terms of the agreement and payment of the charges for the electric power consumed. 3. Defendant No. 1 was irregular in the payments of electricity charges. A sum of Rs. 18,39,000 was outstanding against defendant No. 1 by the end of April, 1989. This outstanding amount also included the sum of Rs. 5,89,050 towards electricity consumption charges for the period June, 1988 to August, 1988, and for the month of February, 1989. On the default of defendant No. 1 to pay the outstanding amount, the electricity connection to defendant No. 1 was temporarily disconnected with effect from January 17, 1989. 4. Defendant No. 1 on May 19, 1989, was allowed to pay the outstanding amount in six instalments. One instalment of Rs. 3,39,000 was paid by defendant No. 1. On the request of defendant No. 1, it was allowed to pay the balance amount of Rs. 15,00,000 in twelve equal monthly instalments. However, no payment was made by defendant No. 1 in spite of repeated opportunities having been granted. The arrears as in November, 1989, rose to Rs. 22,10,896. As a result, the electricity connection was against temporarily disconnected on November 3, 1989. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 of 1987 and as such the suit is not maintainable. The correctness of the outstanding amount has also been denied. Objections as to absence of cause of action, limitation and estoppel were also raised. 8. On the pleadings of the parties, the following issues were framed on March 22, 1999 : (1)Whether the plaint does not disclose any cause of action, as alleged ? OPD (2)Whether the plaintiff is guilty of concealing the material facts and the present suit is not maintainable, as alleged ? OPD (3)Whether the suit of the plaintiff is time-barred, as alleged ? OPD (4)Whether the plaintiff is estopped by its acts of omission and commission and conduct, as alleged ? OPD (5)Whether the electric connection to defendant No. 1 was granted by the plaintiff on the surety of defendant No. 2, if so, its effect ? OPP (6)Issue No. 5 is decided in the affirmative whether defendant No. 2 is not liable to pay the suit amount, as alleged ? OPD (7)Whether the plaintiff is entitled to the interest, if so, at what rate ? OPP (8)To what amount towards the principal and interest is the plaintiff entitled and if so, from whom ? OPP (9)Relief. 9. I have heard learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aling material facts and has not approached this court with clean hands inasmuch as defendant No. 1 company stood wound up vide order dated February 4, 1994, passed by the High Court of Punjab and Haryana in Company Petition No. 110 of 1987. Therefore, the present suit is not maintainable and unless and until an appropriate permission to file the suit from the authorities appointed by the High Court of Punjab and Haryana is obtained, the suit is liable to be dismissed." 16. Section 446 (1) of the Companies Act, 1956, provides : Suits Stayed on winding up order. (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceedings shall be commenced, or if pending at the date of winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose." [Emphasis supplied] 17. PW-2 S.K. Gupta, Director (Planning) of the plaintiff, during the course of cross-examination has admitted to the following facts : "It is correct that an order with regard to winding up of defendant No. 1 company was passed by the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 171 has the jurisdiction to grant leave to proceed with a suit or other legal proceedings against a company in liquidation, when such leave was not obtained before the commencement of the suit or other legal proceeding. In the said case the winding up order was passed on April 1, 1949. An appeal was filed against the order dated February 14, 1949, against the company on April 1, 1949, without obtaining the requisite leave under section 171. The leave was sought during the pendency of the appeal. A learned single judge refused the leave holding that he had no jurisdiction to give leave to continue the appeal. The Division Bench held that the court has jurisdiction to grant leave to proceed with a suit or other legal proceeding against a company in liquidation, even though such leave was not obtained before its commencement. 25. A contrary view has been taken by a Division Bench of the Bombay High Court in Eastern Steamship (P.) Ltd. v. Pucto (P.) Ltd. [1971] 41 Comp. Cas. 43. Dealing with section 446 of the Companies Act, 1956, it has been held that leave to commence a suit or to proceed with it could only be granted before the suit is commenced and no leave can be granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnected are being taken up together. The case of defendant No. 2 is that since it never stood as a surety for defendant No. 1, the plaintiff has no cause of action against it. 32. Exhibit PW-4/B is the surety bond alleged to have been executed by defendant Nos. 2 and 3 in favour of the plaintiff. Admittedly, defendant No. 2 is a partnership firm, while defendant No. 3 is a limited company duly incorporated under the Companies Act, 1956. The surety bond exhibit PW-4/B is alleged to have been signed and executed by one Ravi Kumar, partner of defendant No. 2 firm and K.K. Punchhi, director of defendant No. 3 company. The surety has been furnished to the extent of Rs. 5,00,000. The surety alleged to have been furnished by defendant Nos. 2 and 3 reads : "(1) Ravi Kumar, (2) K.K. Punchhi, hereby declare ourselves sureties for the above bounden and guarantee that he shall do and perform all that he has above undertaken to do and perform, and in case of his omission, default or failure therein, we hereby bind ourselves jointly and severally to forfeit to the HPSEB (hereinafter referred to as "the Board"), which expression shall unless excluded by or repugnant to the context (inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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