TMI Blog1941 (6) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 916] 91 PR 1916; AIR 1916 Lah. 24 , it was held that this applied to a petition for the revision of an order or decree obtained in favour of the company. A different view, however, was taken by a Full Bench of the Punjab Chief Court in Kishen Singh v. Industrial Bank of India. [1918] 62 PR 1918; AIR 1918 Lah. 181. It was then held that, although an appeal was a legal proceeding and might in a sense be regarded as a proceeding against the company, it should not be regarded as a proceeding against the company for the purposes of section 171 when it arose in a case brought on behalf of the company, inasmuch as it was purely a defensive proceeding. This view was based on the decision of the House of Lords in Humber Co. v. John Griffiths Cycle Co. [1901] 85 LT 141. A similar principle also appears to have been accepted in Mersey Steel and Iron Co. v. Naylor [1883] 9 QB 648. The same view has subsequently been followed by this Court in Jiwan Das v. Peoples' Bank of Northern India [1937] AIR 1937 Lah. 926 and Simla Banking and Industrial Co., Ltd., Lahore v. Indo Swiss Trading Co. Ltd., Calcutta [1938] 8 Comp. Cas. 286 as well as by the Court of the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh s case ( supra ) . which has been followed as a matter of practice in this Province since then. We are of opinion, however, that the decision in Bhawanishankar v. Industrial Bank of India Ltd. [1919] 70 P.R. 1919; AIR 1919 Lah. 200 should be reconsidered, and for this purpose we refer the case to a Full Bench for decision of the question whether a suit under Order 21, Rule 63, against a company in liquidation should be regarded as a suit "against the company" for the purposes of section 171, Companies Act, 1913, regard being had to the principle laid down in Kishen Singh v. Industrial Bank of India. [1918] 62 P.R. 1918; AIR 1918 Lah. 181. OPINION Tek Chand, J. Two cases, regular Second Appeal No. 445 of 1939 and Letters Patent Appeal No. 166 of 1940, were separately referred to the Full Bench, but they have been heard together, as the question of law involved in them is the same. The referring Bench did not state, in so many words, the question on which the opinion of the Full Bench was invited, and, therefore, at the commencement of the hearing before us, we formulated the question as follows: "Where in execution of a decree obtained by a company in liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst in stance, analogous to a suit, initiated by means of a petition similar to a plaint. It does not include proceedings taken in the course of the suit nor proceedings arising from the suit and continued in a higher Court like an appeal from an interlocutory or final order passed in the suit. The rule of interpretation to be followed in such cases is contained in the maxim copulatio verborum indicat acceptationem in eodem sensu (the coupling of words shows that they are to be understood in the same sense). Reference may, in this connection be made to Hood Barrs v. Cathcart [1894] 3 Ch. 376 , affirmed on appeal by the House of Lords in Hood Barrs v. Heriot [1897] AG 177. in which a similar provision in the (English) Married Women's Property Act, 56 and 57 Viet., C. 63, section 2, was so interpreted. A case under Order 21, Rule 63, by an unsuccessful objector is initiated with a plaint. It is therefore a 'suit' and, prima facto, within the prohibition contained in section 171, Companies Act,. It is, however, contended that it is not a 'suit' strictly so-called, but is a 'legal proceeding ' of a peculiar kind. In support of this contention, reference is first made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Kumari v. Ghanshyam Misra [1908] 35 Cal. 202 . The exact point before their Lordships in that case related to the proper court-fee payable on the plaint in a suit under Order 21, Rule 63, Civil Procedure Code where the plaintiff, h aving unsuccessfully objected to the attachment of the property in proceedings in execution of the decree of defendant 1 against defendant 2 had brought a suit for declaration of her title and for an injunction. The Subordinate Judge as well as the Calcutta High Court had held that court-fee was payable ad valorem on the amount of the decree in execution of which the property had been attached. Their Lordships, in reversing this decision, held that the case was governed by Art. 17 (1) of Schedule 11, Court-Fees Act, which prescribes a fee of Rs. 10 on the plaint "in suit to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any Revenue Court." In coming to this conclusion, they examined the "object and nature" of a suit under section 283 of the Code of 1882 (Order 21, Rule 63, of the present Code) and remarked that it was "simply a form of appeal." They also stressed the "essential f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would take out of the purview of section 171, Companies Act, suits of diverse kinds and render its provisions largely nugatory. To give a few instances: If a company has got a notice of ejectment issued by a revenue officer against a tenant of property owned by it and the tenant brings a suit in a Revenue Court to contest the notice of ejectment or, denying the relationship of landlord and tenant, sues in a Civil Court, can it be said that such a suit is in the nature of a "defensive proceeding" and therefore not governed by section 171, Companies Act? Again, where some one bad taken forcible possession of premises owned by a company in liquidation and within six months of the forcible dispossession the liquidator brought a suit under section 9, Specific Relief Act, and obtained decree in execution of which possession has been restored to him, and subsequently, the opposite party wishes to bring a regular suit against the company to establish his title and recover possession, obviously, he cannot do so without leave of the Court. If the appellant's contention were sound, a suit to set aside a decree, which bad been passed in favour of the company against him, on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be commenced without the leave of the Court which had ordered the winding up. We would accordingly, answer the question referred to the Full Bench in the negative. Before concluding, it may be mentioned that in course of the argument, reference was made to the judgment of Braund, J., of the Allahabad High Court in Rawat Raj Kumar Singh v. Benares Bank Ltd. [1941] 11 Comp. Cas. 59 in which the Full Bench decision of the Chief Court in Kishen Singh v. Industrial Bank of Indias was adversely criticised and the view was expressed that an appeal or revision preferred by a defendant against an order or decree in a suit instituted by the company is a "legal proceeding" within section 171 and therefore cannot be brought without the leave of the Court. As stated above, the expression "legal proceeding" in the section appears to us to mean original proceeding, analogus to a suit, and not proceeding arising in the suit, though carried on in the Court of Appeal or revision. In our view, Kishen Singh v. Industrial Bank of India [1918] 62 PR 1918; AIR 1918 Lah. 181, rightly intrepreted the decision of the House of Lords in Humber Co. v.: John Griffiths Cycle Co. [1901] 85 LT ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
