TMI Blog1955 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... g held at Nagpur endorsed the decision of the members to go into voluntary liquidation, and further approved the appointment of Shri Sarwate as the liquidator. The office of the liquidator is located at Nagpur for the purpose of liquidation. Three of the applicants and the deceased husband of one of them signed and subscribed to the memorandum of association. None of the signatories paid anything towards the shares shown against the names of each in the memorandum. The liquidator entered upon and after due notice to the applicants settled a list of contributories on 12th August, 1950, holding that all the signatories were liable to pay the unpaid share money in respect of their unpaid shares as contributories. The liquidator was of opinion that the claims of the creditors of the company far exceeded the realizable assets of the company including the sums payable by the contributories. The liquidator therefore by his order on 12th August, 1950, called upon the contributories to pay the unpaid share money standing against their names. Three notices were sent to the applicants on 19th August, 1950, 23rd August, 1951, and 29th May, 1952, calling upon them to make the payments. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Full Bench and could not adhere to their previous view. The liquidator by reason of section 179( a ) read with section 212 of the Indian Companies Act is empowered to institute a suit "in the name and on behalf of the company." The description of the plaintiff is in accord with the statute and makes it evident in what capacity Shri Sarwate figures in the plaint, i.e., "Liquidator, for and on behalf of the National Aluminium Company of India, Limited (in voluntary liquidation)." Even if there be any mis-description, it can be set right as was done in Muhammad Yusuf s case ( supra ). The second point is that the liquidator could not have brought the suit without the sanction of the court. It is true that under section 179 sanction of the court is required for instituting suits as provided in clause ( a ) of the section. But we are concerned with the liquidator in a voluntary winding up. Clause ( a ) of sub-section (1) of section 212 provides that the liquidator requires the sanction as mentioned in that clause for the exercise of the powers given by clauses ( d ), ( e ), ( f ) and ( h ) of section 179. Clause ( b ) provides: "without the sanction referred to in clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, with the qualifications following " Then seven qualifications are mentioned. According to section 158, the term "contributory" means every person liable to contribute to the assets of a company in the event of its being wound up. Section 159 enacts that the liability of a contributory shall create a debt payable at the time specified in the calls made on him by the liquidator. Thus the debt under the statute is a new creation, quite distinct and apart from any pre-existing contractual liability. Reference may be made to the decision of the House of Lords and the three decisions of Jessel M.R. under section 38 of the English Companies Act, 1862, (corresponding to section 156 of the Indian Companies Act). See Webb v. Whiffin [1872] 5 HL 711 , In re White House Co. [1878] 9 Ch. D. 595, 599 , In re National Funds Assurance Company [1878] 10 Ch. D. 118, 129 and Burgess's case [1880] 15 Ch. D. 507, 511 . The point is further concluded by the pronouncement of the Judicial Committee in Hansraj Gupta v. Asthana [1932] 2 Comp. Cas. 548 : "On the winding up, sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of calls made prior to the liquidation. It was held that in so far as the suit was for recovery of a contractual debt, it was barred by limitation and in so far as the suit was for realization of a statutory debt created by section 156, it was not maintainable because of non-compliance with section 187. But in the instant case no question of compliance with section 187 arises because in a voluntary winding up the liquidator is under section 212(1)( d ) empowered to exercise the power of the court in making calls. With due deference to Chagla C.J., I see no warrant for saying that the liquidator in a voluntary winding up cannot exercise the power of the court of making calls without the sanction of the court. That power can be exercised by the liquidator in a voluntary winding up, unlike the one in a compulsory winding up, without reference to the court. It is true that the liquidator may under section 216(1) apply to the court for enforcing the call and the court may thereupon exercise all or any of the powers which it would exercise if the company were being wound up by the court. But the liquidator is not bound to resort to section 216(1) and may proceed by way of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his favour.": Chand Koor v. Partab Singh [1889] ILR 16 Cal. 98, 102 . Whether any particular facts constitute a cause of action has necessarily to be determined with reference to the facts of each case. For the purpose of the present revision, no question is raised as to whether the meeting at Nagpur to wind up the company was in order and whether the list of contributories was properly made. Nor is the court concerned at this stage with the question whether the restrictions on commencement of business in section 103 were complied with or not and the consequence of non-compliance with that provision. So I must proceed on/the basis that the winding up of the company and the appointment of the liquidator were decided upon at Nagpur. On the authorities the suit is one for enforcing a new liability which springs into existence, "in the event of the company being wound up." So it is necessary for the plaintiff to set forth as part of his cause of action that the event has occurred. As that has occurred at Nagpur, it must be held that a part of the cause of action arises within the jurisdiction of the trial court. The revision applications accordingly fail and are dismissed with c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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