TMI Blog1977 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... e P. Ltd. was ordered to be wound up by the order of the High Court of Punjab (Circuit Bench at Delhi) in Civil Original No. 31-D of 1964, by order dated December 11, 1964, passed by S.B. Capoor J. The official liquidator filed a petition under section 446(2)( b ) of the Companies Act on June 14, 1967, for the recovery of Rs. 1,11,866.30. from three persons including Jaimal Singh Makin, the appellant before us in all the four appeals. Similar applications were filed against Jaimal Singh Makin and others by way of Company Petitions Nos. 71, 68 and 69 of 1967. Jaimal Singh, the present appellant, R. Sen and Hargurchet Singh Kandola, who were respondents in Company Petitions Nos. 70 and 71 of 1967, were directors of the company in liquidation. Another Company Petition No. 68 of 1967 was also filed in which the aforesaid three persons were partners. The official liquidator had, in these petitions, claimed large amounts from several respondents on the basis of entries in the books of account of the company and, in so far as at least the directors were concerned, also on the basis of the statements made in the balance-sheet and profit and loss account of the company. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, the proper remedy for the official liquidator was to file a suit under section 446(2)( a ) and not a petition by way of a claim petition under section 446(2)( b ) of the Companies Act. It was also submitted that the fact that the appellant was a director was no consideration for whether a petition under section 446(2)( b ) was maintainable or not. In any case, it was submitted, proper court fees had not been paid on the petitions. For proper appreciation of the submissions made by the learned counsel for the appellant, it is necessary to examine the provisions of section 446(2) of the Companies Act, 1956, before and after the amendment of 1960. These provisions are as under : BEFORE THE AMENDMENT OF 1960 "446. Suits stayed on winding-up order. (1) When a winding-up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose. (2) The court which is winding up the company shall, notwithstanding anything conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Court-fees Act and in suits for money, ad valorem court fees was payable in accordance with Schedule I of the Court-fees Act. The amendment by way of addition of clauses ( b ), ( c ) and ( d ) to subsection (2) was brought about in view of the report of the Companies Act Amendment Committee headed by Shri A.V. Visvanatha Shastri. The said Committee at page 160 of its report in paragraph 164 made the following recommendation: "Section 446: Suits and proceedings: 164. A suggestion has been made that the court winding up the company should have full power to decide all claims made by or against any company and all questions of priorities and all other questions whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of the company coming within the cognizance of the court. Such a provision would be on the lines of section 4 of the Provincial Towns Insolvency Act, section 7 of the Presidency Towns Insolvency Act and section 45B of the Banking Companies Act and would speed up the winding-up proceedings. There is no danger of the provisions being abused in view of the fact that it is the High Court or the District Court that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the High Court while exercising powers under section 45B had no power to deal with a question relating to ejectment in summary proceedings initiated on an application. The Supreme Court dealt with the scheme of the Banking Companies Act and dealing with sections in Part III-A of this Act observed that these sections constituted a wide departure from the corresponding provisions of the Indian Companies Act and referring to the provisions of the Indian Companies Act, it was observed (page 22): "Under various sections thereof the liquidator, after an order for winding up of a company is made, can approach a company court for exercising certain powers in aid of and to expedite the process of liquidation. The procedure normally adopted for the purpose is by way of an application. But the scope of matters in respect of which the liquidator can obtain the help of the company court by summary procedure is rather limited. In respect of other matters and particularly in the matter of collecting assets or recovering properties from third parties (not covered by sections 185 and 186) the liquidator has to invoke the help of the appropriate court in the ordinary way. This as is well know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up is Rs. 13. The application, in the instant case, filed by the official liquidator was directly covered by that clause of article 1 of Schedule II and, therefore, the payment of Rs. 13 as court fee was correct. The learned counsel, however, placed reliance on a decision reported in In re Official Liquidator v. T. Muniswamy Achary [1970] 40 Comp. Cas. 489 , 491; AIR 1967 Mys. 190, wherein it was held: "The result is that although section 446(2) of the Companies Act empowers this court as the winding-up court to entertain a suit, the court fee payable in respect of it has necessarily to be calculated under the Mysore Court-fees and Suits Valuation Act, 1958". In that case, the liquidator under 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 appeard 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jecting the submission, made an observation that the fact that a suit is contemplated by clause ( a ) of sub-section (2) does not go counter to this construction because if the official liquidator makes a claim by a petition, it is open to the company court to say, by reason of the controversies that are raised in the claim petition, that such, a claim should be made by a suit and if it is so ordered, the official liquidator will have to file a suit even though before the very court and in such an event pay the court fee that is required to be paid in accordance with the provisions of the Court-fees Act and which, in claims for money, would be ad valorem on the subject-matter of the claim. We do not think that these observations of the learned company judge mean that once any claim is properly filed by the official liquidator under section 446(2)( b ) of the Act, the company judge, during trial, could order it to be converted into a suit and then call Upon the party to pay the court-fees. These observations, as we understood, have been made as to the power of the company judge to give directions to the official liquidator before the filing of the petition under section 446(2)( b ), ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
