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

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCompany Petn. No. 10 of 1963
Judge
Reported inAIR1967Kant190; AIR1967Mys190
ActsCompanies Act, 1956 - Sections 446, 446(1), 446(2) and 477; Code of Civil Procedure (CPC); Mysore Court-Fees and Suits Valuation Act, 1958; Banking Companies Act - Sections 45B; Banking Regulation Act; Court-Fees Act, 1870 - Sections 3
AppellantThe Official Liquidator, High Court of Mysore, Bangalore
RespondentT. Muniswamy Achary and ors.
Advocates:Party in person and ;Spl. Govt. Pleader
Excerpt:
.....of suits which the liquidator may file in winding up have to be treated as regular suits for purposes of court-fee and court-fee paid accordingly thereon under the mysore court-fees and suits valuation act, 1958. 11.order accordingly......a suit. court fee payable in respect of it has necessarily to be calculated under the mysore court-fees and suits valuation act 1958. 9. the decision of the supreme court reported in dhirendra chandra pal v. associated bank of tripura ltd. : 1955crilj555 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 there under are not proceedings in the nature of suit, but summary proceedings specially provided for expeditious disposal of winding up proceedings in the case of banking companies with liberty or power to the court to frame its own procedure for the disposal of such applications. 10. i, therefore, hold that the present application as well as similar applications in the nature of.....
Judgment:
ORDER

1. As there were many persons from whom monies were due to the Company, the Liquidator under my direction originally took out 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.

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

5. 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.

6. 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 fee 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 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.

7. The Companies Act is enacted by Parliament pursuant to entry No. 14 of the 1st list 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 the 2nd list 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 the 1st list, which empowers Parliament to legislate on fees in respect of any of the matters enumerated in the said list, expressly excludes therefrom fees taken in any Court.

8. The result is that although Section 446(2) of the Companies Act empowers this Court as the winding up Court to entertain a suit. Court fee payable in respect of it has necessarily to be calculated under the Mysore Court-Fees and Suits Valuation Act 1958.

9. The decision of the Supreme Court reported in Dhirendra Chandra Pal v. Associated Bank of Tripura Ltd. : 1955CriLJ555 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 there under are not proceedings in the nature of suit, but summary proceedings specially provided for expeditious disposal of winding up proceedings in the case of Banking Companies with liberty or power to the Court to frame its own procedure for the disposal of such applications.

10. 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 Court-fee paid accordingly thereon under the Mysore Court-Fees and Suits Valuation Act, 1958.

11.Order accordingly.


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