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Official Liquidator, High Court of Mysore Vs. T. Muniswamy Achary and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Case NumberCompany Petition No. 10 of 1963
Judge
Reported in[1969]39CompCas145(Kar); (1967)1MysLJ449
ActsCompanies Act - Sections 477; Mysore Court-fees and Suits Valuation Act, 1958
AppellantOfficial Liquidator, High Court of Mysore
RespondentT. Muniswamy Achary and ors.
Excerpt:
.....since the date of superannuation falls within period of multiplier, 1/3rd of income towards personal expenses deducted. compensation of rs. 8,89,000/- with 6% interest was awarded. no interference. section 173: [huluvadi g. ramesh,j] appeal by insurance company challenging quantum of compensation held, unless tribunal permit insurer to avail grounds which are available to insured or person against whom claim has been made, appeal filed by insurer is not maintainable. .....the court-fee payable in respect of it has necessarily to be calculated under the mysore court-fees and suits valuation act, 1958. 8. the decision of the supreme court in dhirendha chandra pal v. associated bank of tripura ltd.' dealt exclusively with the position as under section 45b of the banking companies act, now called the banking regulation act, and held that the proceedings thereunder are not proceedings in the nature of a suit but summary proceedings specially provided for expeditious disposal of winding up proceedings in the case of banking companies @'ith liberty of power to the court to frame its own procedure for the disposal of such applications. 9. i, therefore, hold that the present application as well as similar applications in the nature of suits which the.....
Judgment:

Narayana Pai, J.

1. As there were many persons from whom monies Were due to the company, the liquidator under my direction originally took all notices to all such debtors under section 477 of the Companies Act, which were dealt with under Single Application No. 26/1965. Majority of the debtors served with notice appeared in court and admitted the claims made against them by the liquidator on behalf of the company. In some cases where there was dispute or lack of agreement about the exact amount due, the parties and the liquidator after looking into the relevant papers, reported to me agreement between them about the exact extent of the liability. In all those cases decrees by consent were passed.

2. In regard to cases where there was some dispute to be gone into and in cases where parties served with notice did not appear, I. made a general direction that the liquidator may take out applications in the nature of suits separately against such parties.

3. The application mentioned above is one such suit.

The question for consideration is the court-fee payable on this application and other applications of the same nature which may hereafter be filed.

4. I issued notices to the Government pleader and he has filed a memorandum setting out the legal position and has also appeared and explained the same to me.

5. The application can be entertained by the company court by virtue of sub-section 1 of section 446 of the Companies Act, according to which the court which is winding up a company has, notwithstanding anything contained in any other law for the time being in force, jurisdiction to entertain and dispose of any suit by or against the company. The jurisdiction thereby conferred merely names the winding up court as also a court in which a suit can be filed, without regard to the special provisions as to the jurisdiction of the civil courts contained either in the Civil Procedure Code or in State legislation constituting courts or other laws. The nature of the suit as a suit does not get changed or transformed into a mere application or a proceeding other than a suit.

6. The Companies Act is enacted by Parliament pursuant to entry No. 14 of List 1 in the 7th Schedule to the Constitution which empowers it to legislate on topics of incorporation, regulation and winding up of corporations. But so far as the court-fees are concerned, the power is vested in the, State legislature under entry No. 3 of List II in the 7th Schedule under which the State legislature has power to legislate on the topics enumerated therein, one of which is fees taken in all courts except in the Supreme Court. Entry No. 96 of List I, which empowers Parliament to legislate on fees in respect of any of the matters enumerated in said list, expressly therefrom fees taken in any court.

7. 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.

8. The decision of the Supreme Court in Dhirendha Chandra Pal v. Associated Bank of Tripura Ltd.' dealt exclusively with the position as under section 45B of the Banking Companies Act, now called the Banking Regulation Act, and held that the proceedings thereunder are not proceedings in the nature of a suit but summary proceedings specially provided for expeditious disposal of winding up proceedings in the case of banking companies @'ith liberty of power to the court to frame its own procedure for the disposal of such applications.

9. I, therefore, hold that the present application as well as similar applications in the nature of suits which the liquidator may file in winding up have to be treated as regular suits for purposes of court-fee and the court,fee 1)aid accordingly there in under the Mysore Court-fees and Suits Valuation Act, 1958.


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