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The Himalaya Bank, limited, in Liquidation, Though the Official Liquidation Vs. Ghulam Muhammad - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All292
AppellantThe Himalaya Bank, "limited," in Liquidation, Though the Official Liquidation
RespondentGhulam Muhammad
Excerpt:
plaint - form of plaint suit by company in liquidation--amendment, civil procedure code, section 53--act no. vi of 1882, (indian companies act), section 144. - - this requirement is distinctly of a formal nature, and a substantial compliance with it is insufficient......appears that objection was taken by the defendant to the form of the suit on the ground that the present plaintiff had no locus standi, and the suit should have been instituted in the name of the himalaya bank. upon this an issue was framed as to whether the suit was correct in form. the subordinate judge, holding that the form of the suit was wrong, dismissed the plaintiff's claim with costs. the lower appellate court had the same question raised before it in appeal. the court considered it to be straw-splitting to dismiss a suit because the suit was laid in the wrong form. in any case it considered that the plaint ought to have been returned for amendment or to have been amended by the court itself under section 53 clause (e) of the code of civil procedure. it accordingly remanded.....
Judgment:

Knox and Aikman, JJ.

1. This is a first appeal from an order passed by the District Judge of Saharanpur whereby he set aside a decree of the Small Cause Court Judge passed in his capacity of Subordinate Judge and remanded the case for re-trial on the merits under Section 562 of the Code of Civil Procedure. The appellant was defendant in the Court of First Instance and the suit brought against him was instituted, as set forth in the plaint, by the 'Official Liquidator, Himalaya Bank, Limited, in liquidation, plaintiff.' The plaint was also subscribed and verified in the same terms. No written statement seems to have been filed, but it appears that objection was taken by the defendant to the form of the suit on the ground that the present plaintiff had no locus standi, and the suit should have been instituted in the name of the Himalaya Bank. Upon this an issue was framed as to whether the suit was correct in form. The Subordinate Judge, holding that the form of the suit was wrong, dismissed the plaintiff's claim with costs. The Lower Appellate Court had the same question raised before it in appeal. The Court considered it to be straw-splitting to dismiss a suit because the suit was laid in the wrong form. In any case it considered that the plaint ought to have been returned for amendment or to have been amended by the Court itself under Section 53 Clause (e) of the Code of Civil Procedure. It accordingly remanded the case for re-trial and added the words--'The lower Court can amend the plaint as suggested above, if it thinks fit to do so.' In our opinion the Lower Appellate Court was wrong in thus holding. The terms of Section 144 of the Indian Companies' Act, 1882, authorize an official liquidator with the sanction of the Court to bring or defend any suit in the name and on behalf of the company. This requirement is distinctly of a formal nature, and a substantial compliance with it is insufficient. In the very same section power is given to the official liquidator to do certain acts in his official name. When such official liquidator is acting in the name and on behalf of the company, it is the company and not the official liquidator who is plaintiff. If we were to authorize an amendment in the case before us, it would not be a mere clerical amendment; it would be the substitution of a person who up to the present moment has never been plaintiff in the suit in place of the person who did in fact sue. Moreover, in the present case it would be permitting a plaintiff whose suit has become barred by limitation to bring the suit so barred, and would be in contravention of the principle laid down in Section 22 of Act No. XV of 1877. The point before us was considered in In re Winterbottom L.R. 18 Q.B.D. 446. In that case Cave, J. observed: 'Although I have struggled against the conclusion, feeling as I do that the debtor has in no way been misled, as appears from his affidavit, yet I have ultimately come to the conclusion that the requirement of the law has not been complied with, and that the proceeding is a proceeding taken in the name of Nicholson, Liquidator, and not the name of the company.' So in the present case we have unwillingly come to the conclusion that the suit before us is one in which the plaintiff is the official liquidator and not the Himalaya Bank, Limited, the only person who has a right of action against the appellant.

2. The appeal must be allowed. We set aside the decree of the Lower Appellate Court and restore that of the Court of First Instance. The appellant will have his costs here and in the Lower Appellate Court.


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