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TMI Blog1974 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... s been treated as preliminary. The argument of the learned counsel for the respondents is that any action by the official liquidator for the recovery of the amount from the debtors of the company amounts to a suit and, therefore, ad valorem court-fee on the amount claimed should be paid as prescribed in article 1, Schedule I, of the Court Fees Act, 1870. According to the learned counsel, for deciding such claims or suits, the jurisdiction of the High Court as a winding-up court and all the subordinate courts, which have the jurisdiction to try such suits, is concurrent and the nature of the proceedings taken by the official liquidator does not change with the forum in which they are filed. The learned counsel relies on a judgment of a learned single judge of the Calcutta High Court in In re Osier Electric Lamp Manufacturing Company Ltd. [1967] 37 Comp Cas 306 , 310, 311 (Cal), wherein the following observations occur : "The words ' suit has been instituted', 'claim or question has arisen ' in sub-clause (d) of clause (2) of section 446 refer to suit or application or claim or question pending in a court other than the winding-up court. The words 'is instituted', 'arises' or 'is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the directions of the court took out notices to the debtors of the company (in liquidation) under section 477 of the Companies Act which were dealt with under a single application. Majority of the debtors appeared in court and admitted the claims made against them by the liquidator on behalf of the company. In some cases, the matters in dispute were settled by agreement and decrees by consent were passed. In regard to cases where there was some dispute to be gone into and in cases where parties served with notices did not appear, the learned judge made a general direction that the liquidator may take out applications in the nature of suits separately against such parties. In pursuance of that direction, the liquidator filed applications against the debtors in the High Court. The question then arose about the payment of the court-fee on such applications, that is, whether it was to be paid ad valorem as on a suit, or fixed court-fee as on an application under section 446 of the Companies Act. The learned judge held that [1970] 40 Comp Cas 489, 490 Mys. : "The nature of the suit as a suit does not get changed or transformed into a mere application or a proceeding other than a sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty to his possession in the name of the court, if the liquidator considers it necessary to approach the court for directions, he is merely acting under sub-section (4) of section 460 of the Act and invoking the powers of the court under section 446(2)(d) of the Act and rule 233 of the Companies (Court) Rules, 1959. The clearest position, therefore, is that the liquidator, in such circumstances, is not obliged to file a suit, nor is the filing of a suit or an application in the nature of a suit before the winding-up court the only or the necessary way of invoking the jurisdiction of the company court. The proper proceeding is undoubtedly an application made to the winding-up court, and the court-fee payable thereon is as for an application and not as for a suit. The proper article applicable is article 11(U) of Schedule II of the Mysore Court Fees and Suits Valuation Act, 1958." From these observations it is clear that it is open to the official liquidator to file an application or a suit and each one of them will have to be stamped in accordance with the provisions in the Court Fees Act. Section 446(2) of the Companies Act reads as under :- "446. (2) The court which is windin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Fees Act, we have to determine under which provision of the Court Fees Act does a document requiring the payment of court-fee fall. If it falls or can fall under more than one provision, then it is open to the person liable to pay the lowest fee prescribed. It is for the legislature to make the provisions clear. It may be noted here that all such claims are filed in the High Court under the Banking Regulation Act and a separate provision has been made for the payment of court-fee on claims made or the appeals arising out of the decisions of those claims petitions under section 45B of that Act. If the legislature is so minded, such a provision can also be made in the Court Fees Act in respect of applications for claims under section 446(2) of the Act. In the absence of such a provision, the present petition is fully covered by clause (d) of article 1 in Schedule II of the Court Fees Act. The learned counsel for the respondents has then relied on rule 11(a ) of the Companies (Court) Rules, 1959, wherein it is stated that the applications mentioned therein have to be made by petitions and these applications do not include an application under section 446(2) of the Companies Act. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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