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Showing 21 to 23 of 23 Records

• 1952 (8) TMI 14
  
  The applicant, Radhey Shyam Tandon, sought the right to appear and plead on behalf of merchants in sales tax cases, but the court ruled that he had no such right under Rule 77A. The court held that only the appellant, a pleader, or a registered accountant could plead before the Judge. The application was dismissed with costs.

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• 1952 (8) TMI 13
  
  Issues Involved:
  1. Appointment of a receiver to enforce a balance order on contributories.
  2. Jurisdiction of the High Court versus lower district courts under the Banking Companies Act.
  3. Appropriateness of appointing a receiver versus using ordinary methods of execution like attachment and sale.
  
  Issue-wise Detailed Analysis:
  
  1. Appointment of a Receiver to Enforce a Balance Order on Contributories:
  The judgment addresses an application for the appointment of a receiver to enforce a balance order on the contributories of Dhakuria Banking Corporation Ltd. (in liquidation). The balance order, dated December 4, 1951, allowed the applicant to enforce a call on the contributories except for one individual. The applicant, the official liquidator, sought a receiver for properties in Dhakuria and Bolepur, Santiniketan, to expedite the sale and avoid separate proceedings in different courts, which would incur more expenses for the banking company in liquidation.
  
  2. Jurisdiction of the High Court versus Lower District Courts under the Banking Companies Act:
  The respondents contended that the ordinary method of execution by attachment and sale should be preferred over the extraordinary method of appointing a receiver. They argued that under the Banking Companies Act, lower district courts lack jurisdiction to handle execution matters related to a banking company in liquidation. The applicant countered that the High Court, having exclusive jurisdiction under sections 45A and 45B of the Banking Companies Act, should handle the execution through a receiver to avoid jurisdictional issues and delays if the matter were referred back to the High Court from a district court.
  
  The judgment references the Bharati Central Bank Ltd. v. Rathindra Nath Sen case, where it was determined that section 45H of the Banking Companies Act is an exception to sections 45A and 45B. This section allows the High Court to execute orders in the manner provided in the Civil Procedure Code, including transferring orders to any court for execution.
  
  3. Appropriateness of Appointing a Receiver versus Using Ordinary Methods of Execution:
  The court found that the grounds alleged in paragraphs 19, 20, and 21 of the petition were insufficient to depart from the ordinary method of execution by attachment and sale. The court emphasized that the ordinary processes should not be supplanted merely due to the location of the properties. The court also noted that the appointment of a receiver should be reserved for cases where ordinary methods are inadequate.
  
  The court discussed the implications of section 45H of the Banking Companies Act, which allows orders to be enforced in the same manner as decrees under the Civil Procedure Code. However, it questioned whether this section re-creates jurisdiction in a court expressly divested of it by sections 45A and 45B. The court concluded that the ordinary methods of execution should be preferred unless specific grounds justify the appointment of a receiver.
  
  Conclusion:
  The court decided not to appoint a receiver, as the applicant did not demonstrate sufficient grounds to deviate from the ordinary methods of execution by attachment and sale. The enforcement order could be executed as a decree under the Civil Procedure Code, and the court emphasized the importance of local sales for publicity and fairness. Therefore, the application was dismissed, with no order for costs in favor of the respondents, but the liquidator was allowed to retain his own costs out of the estate.

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• 1952 (8) TMI 12
  
  Issues Involved:
  1. Company's inability to pay its debts.
  2. Service of statutory notice of demand.
  3. Validity of the decree obtained by the judgment creditor.
  4. Allegations of fraud and collusion in obtaining the decree.
  5. Applicability of section 163 of the Indian Companies Act.
  
  Detailed Analysis:
  
  1. Company's Inability to Pay Its Debts:
  The judgment creditor filed for the winding up of the company on grounds that the company is unable to pay its debts. The petitioner had obtained a decree against the company on 26th May 1949, which remains unsatisfied. Despite execution proceedings where certain lands were attached and sold, the balance of the decree amounting to Rs. 11,976-9-6 remains unpaid. The company's inability to pay its debts is established under section 163(1)(ii) of the Indian Companies Act as the execution of the decree remains unsatisfied.
  
  2. Service of Statutory Notice of Demand:
  The statutory notice of demand was sent by registered post on 29th August 1951, as required by section 163 of the Indian Companies Act. The company's affidavit-in-opposition vaguely denied the receipt of the notice. However, evidence provided by Narendra Nath Palit, who posted the notice and received the acknowledgment, was accepted. The court held that there was proper delivery of the statutory demand notice, as no one from the company came forward to dispute the receipt of the notice.
  
  3. Validity of the Decree Obtained by the Judgment Creditor:
  The company challenged the decree on grounds of fraud and collusion but failed to provide specific particulars or take any legal steps to set aside the ex parte decree. The court emphasized that a judgment is prima facie evidence of a debt and carries significant weight. The company did not file an application under Order IX, rule 13, of the Civil Procedure Code to set aside the ex parte decree, nor did it file a suit to challenge the decree within the limitation period.
  
  4. Allegations of Fraud and Collusion in Obtaining the Decree:
  The company alleged that the decree was obtained fraudulently and in collusion with some officers and employees. However, these allegations were vague and unsupported by specific particulars. The court noted that mere assertions of fraud or collusion do not justify reopening a judgment-debt. A prima facie case of fraud requiring investigation must be shown, which the company failed to do. The court referred to the principles laid down in Lennox In re: ex parte Lennox and other cases, emphasizing that a bankruptcy court can go behind a judgment-debt only on proper grounds of fraud or collusion.
  
  5. Applicability of Section 163 of the Indian Companies Act:
  The court found that the petition for winding up met the grounds specified in section 163 of the Indian Companies Act. The statutory demand remained unsatisfied for three weeks, and execution of the decree was returned unsatisfied, fulfilling the conditions under section 163(1)(i) and (ii). The court concluded that the company must be deemed unable to pay its debts under the statute.
  
  Conclusion:
  The court ordered the winding up of the company, certified for counsel, with costs to come out of the assets of the company. The judgment emphasized the importance of specific and supported allegations of fraud or collusion and upheld the statutory requirements for deeming a company unable to pay its debts under section 163 of the Indian Companies Act.

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