TMI Blog1970 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ued capital was Rs. 32,700 while its paid up capital was about Rs. 24,000 only. It had 15 members out of which seven were its directors. The respondent obtained a decree dated December 4, 1957, against the appellant company for a sum of Rs. 2,640 from the Court of Sub-Judge, 1st Class, Delhi. The appellant-company, it is alleged, had closed its business since the beginning of 1958 and was not able to pay the decretal amount despite service of notice on it by the respondent for that purpose. Even the landlord is alleged to have obtained a decree against the appellant for its eviction and for recovery of arrears of rent. The company had not held even a meeting of its shareholders, nor had it submitted any returns to the Registrar of Joint Stock Companies, nor had it filed any balance-sheet with him. This had resulted in the prosecution of its directors. The appellant-company, it was asserted, could not pay its debts and its substratum had gone. Its assets were said to consist of few films, which were hardly worth any value. It was under these circumstances that the respondent prayed that it was just, equitable and convenient to wind up the appellant company, more especially as it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a time when the Court of the District Judge had admittedly no jurisdiction to entertain the same. It was stated that even the original petition filed on June 4, 1959, could not be entertained by the Court of the District Judge as the notification dated May 29, 1959, saved only such petitions (if it could save any) as were pending in the court on that date. As the said petition was not pending in the Court of the said District Judge on May 29, 1959, it was not saved. The petition otherwise was resisted on merits. The company was alleged to be commercially solvent and the existence of normal commercial debts was alleged not to imply that the company was unable to pay the same. It was also stated that the respondent was a firm different from the one which obtained a decree against the appellant-company as in the meanwhile on account of the death of certain partners, the constitution of the said firm had changed. It was prayed, under the circumstances, that the petition be dismissed with costs. The learned district judge, dealing with the question of his jurisdiction, came to the conclusion that the notification dated May 29, 1959, having been published in the official gazette da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the petitioner in the main case, was an entity different from the one in whose favour the money decree had been passed and on the basis of which the winding-up petition had been filed. But, as held by the learned district judge in his order dated April 3, 1969, rule 4 of order 30 of the Code of Civil Procedure enabled the proceedings to be still continued in the firm's name. It was, therefore, not necessary to join the legal representatives of the deceased as parties. The contention of the learned counsel, therefore, was without any force. It was next contended by Mr. Satish Chander that the district judge, Delhi, had no jurisdiction to entertain the petition under section 433 of the Companies Act, 1956. But, as stated already, this contention had been overruled by the learned district judge. Even the appeal against this order had been dismissed by the High Court as withdrawn. The contention of the learned counsel that this dismissal, not being on merits, did not preclude the appellant from urging again this objection, is without substance as under sub-rule (3) of rule 1 of Order 23, read with section 144 of the Code of Civil Procedure, where the appeal is withdrawn, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to exercise all or any of the jurisdiction conferred by the said Act upon the court, except the jurisdiction conferred by sections 425 to 560 and the other provisions relating to winding-up of companies, in respect of the companies with a paid up share capital of not less than Rs. 1,00,000 and jurisdiction conferred by sections 237, 391, 394, 395 and 397 to 407, both inclusive in respect of companies generally. The earlier notification issued under the 1913 Act, therefore, could have also been made, in respect of companies like the appellant, with a paid up capital of less than Rs. 1,00,000, under the present Act, and, therefore, continued to be in force and effect under the new Act till it was taken away on June 6, 1959, by notification dated May 29, 1959, as already stated. The learned counsel for the appellant contended that under the old Act, this jurisdiction could be conferred in respect of all the provisions of the Act, while it cannot he done under certain sections of the present Act. The scope of the jurisdiction that could be conferred under the old Act was, therefore, wider than it is now. Section 645 of the present Act saves only such orders, urged the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the old Act was saved by section 24 of the General Clauses Act. In any case, the position of the district judge, Delhi, as stated above, is entirely different because the jurisdiction conferred on him was not by a local Government, but by the Central Government itself and was specifically saved by section 645 of the Companies Act, 1956. The learned counsel for the appellant further contended that the notice required to be served under section 434 of the Act could not help the respondent, as he had not taken out execution of the decree passed in his favour, which he was required to do under clause ( b ) of sub-section (1) of section 434. Section 434 of the Companies Act, 1956, reads as follows : "434. (1) A company shall be deemed to be unable to pay its debts ( a )if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees, then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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