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The Government Pleader, High Court Vs. S.L. Jain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 751 of 1961
Judge
Reported in(1965)67BOMLR901
AppellantThe Government Pleader, High Court
RespondentS.L. Jain
Excerpt:
bombay court-fees act (bom. xxxvi of 1959), schedule ii; articles 1(iii), 34-insurance act (iv of 1938), section 53(1)-companies act (i of 1956), section 439-petttion filed under section 53(1) of insurance act-applicability of article 1(iii) or 34 of bombay court-fees act.;the provisions in article 1(iii) in schedule ii to the bombay court-fees act, 1959, apply to a petition for winding up filed under section 53(1) of the insurance act, 1938. - .....1 was that the petition in question had not been filed under the provisions of section 439 of the indian companies act. his petition for winding up was filed under section 53(1) of the insurance act, 1938. his contention was that to his petition the provisions in article 1(iii) in schedule ii of the act were applicable. article 1(iii) in schedule ii runs as follows:________________________________________________________________________________________ number ...... proper fee 1 2 3_________________________________________________________________________________________ 1. application or petition ...... ...... (iii) in any other case not other. wise provided for by this act._________________________________________________________________________________________it is sufficient to state.....
Judgment:

K.K. Desai, J.

1. This Civil Revision Application arises out of the order dated February 20, 1961, passed by the Taxing Master of this Court on a reference made to him under Section 5 of the Bombay Court-fees Act, 1959. The Taxing Master was called upon to determine the Court-fees payable by opponent No. 1 on the petition for winding up that he had filed for winding up of opponent No. 2 company, i.e. Warden Insurance Co. Ltd. Doubts arose as to the Court-fees payable, because there is clear provision in Article 34 in Schedule II to the Bombay Court-fees Act that on a petition to the Court under Section 439 of the Companies Act for winding of a company the Court-fee is fifty rupees. The case of opponent No. 1 was that the petition in question had not been filed under the provisions of Section 439 of the Indian Companies Act. His petition for winding up was filed under Section 53(1) of the Insurance Act, 1938. His contention was that to his petition the provisions in Article 1(iii) in Schedule II of the Act were applicable. Article 1(iii) in Schedule II runs as follows:

________________________________________________________________________________________

Number ...... Proper fee

1 2 3

_________________________________________________________________________________________

1. Application or petition ...... ......

(iii) in any other case not other.

wise provided for by this Act.

_________________________________________________________________________________________

It is sufficient to state that Article 1 in its prior parts refers to several kinds of applications and petitions which are not petitions for winding up.

2. The learned Taxing Master held that to the petition of opponent No. 1 the provisions in Article 34 were not applicable.

3. Mr. Abhayankar for the Government Pleader has contended that on a true construction of the provisions in Section 53 of the Insurance Act it should be held that all petitions for winding up which can be instituted by reason of the provisions in Section 53 are petitions for winding up under the Indian Companies Act. To such petitions, the provisions in Article 34 referred to above are applicable. Section 53 of the Insurance Act inter alia, provides:

53. (1) The Court may order the winding up in accordance with the Indian Companies Act 1913, of any insurance company and the provisions of that Act shall, subject to the provisions of this Act apply accordingly.

(2) In addition to the grounds on which such an order may be based, the Court may order the winding up of an insurance company-...

The subsequent provisions give grounds for winding up of an insurance company under the Insurance Act. These grounds are not any of the grounds contained in Section 439 of the Companies Act. In connection with the above contention, it is sufficient to state that on a true construction of Sub-section (1) of Section 53 it is clear that the orders for winding up of insurance companies on petitions filed under Section 53 are made because the provisions of the Insurance Act apply to such winding up petitions. The winding up is to be carried out under the sub-section in accordance with the Indian Companies Act. It would not be possible to hold in respect of petitions made under Section 53 of the Insurance Act that the petitions are made 'under' the Indian Companies Act. In other words, though the winding up is to be carried out 'in accordance with' the provisions in 'the Indian Companies Act', the petitions must be held to be made under Section 53 of the Insurance Act. The same is the finding of the learned Taxing Master. It is not possible to interfere with that finding, as I agree with the conclusions arrived at by him.

4. Rule discharged. No order as to costs.


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