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Jagannath Prasad Vs. U.P. Flour and Oil Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAllahabad
Decided On
Judge
Reported in35Ind.Cas.159
AppellantJagannath Prasad
RespondentU.P. Flour and Oil Mills Co. Ltd.
Excerpt:
companies act (vi of 1882,), sections 81, 125, 151 - contributory, liability of--calls, unpaid, barred by time, if recoverable by liquidator--limitation act (ix of 1908), schedule i, article 112. - .....from such person at the time when his liability commenced, but payable at the time or respective times when calls are made as hereinafter mentioned for enforcing such liability.' now it is quite clear that the contribution dealt with under section 61, which is in itself a sort of correlative duty to the right which a shareholder has to have his liability, for any debt or expense of the winding up which the company may have incurred, limited to the amount of his original subscription, is not in itself a debt. bat the act says that for the purpose of recovery the amount shall be deemed to be a debt payable at the time or respective times when calls are made, and section 151 gives a court power to make calls from persons on the list of contributories for the amount for which they are.....
Judgment:

Walsh, J.

1. In our opinion this appeal must be dismissed. A question of principle has been raised apparently for the first time in this Court, namely as to whether an unpaid call, due from a share-holder of a company, which has become statute-barred under Article 112 of the Limitation Act and has, therefore, ceased to be a recoverable debt by the company, may yet be recovered if at any date subsequent to its having become time-barred the company is wound up. That question really depends upon the nature of the liability of a contributory and the provisions of the Indian Companies Act relating to winding up. We entirely agree with the contention put forward by the appellant's Counsel that so far as the recovery of the original debt based upon calls made by the company which has become time-barred is concerned, the liquidator has no higher right than the company. The company could not sue for these calls, no more can the liquidator. But the proceeding before us, as has been pointed out by the learned Counsel for the respondent is not a suit at all. What has happened is that in the performance of his duty the liquidator has put the appellant on the list of contributories. Once a member of the company is upon the list of contributories--unless he succeeds in showing as against the liquidator that he should not have been put on the list of contributories,--he is liable for all those matters in respect of which he may be charged in the event of a company being wound up, that is to say, to the extent of his original share held in the company which remains unpaid, he is, liable to contribute to the assets of the company for payment of the debts due to creditors and the expenses of the winding up under Section 61 of the Indian Companies Act No. VI of 1882. Now it is necessary to refer to Section 125 of that Act in order to ascertain the nature of that liability. Section 125 provides as follows: 'The liability of any person to contribute to the assets of a company under this Act in the event of the same being wound up shall be deemed to create a debt accruing due from such person at the time when his liability commenced, but payable at the time or respective times when calls are made as hereinafter mentioned for enforcing such liability.' Now it is quite clear that the contribution dealt with under Section 61, which is in itself a sort of correlative duty to the right which a shareholder has to have his liability, for any debt or expense of the winding up which the company may have incurred, limited to the amount of his original subscription, is not in itself a debt. Bat the Act says that for the purpose of recovery the amount shall be deemed to be a debt payable at the time or respective times when calls are made, and Section 151 gives a Court power to make calls from persons on the list of contributories for the amount for which they are shown as liable in the list prepared by the liquidator; so that really it is not even the right of a company which is being enforced by the liquidator. It is a statutory right of the creditors of a company to enforce against the contriblitories of an insolvent company through the Court the obligation, which the shareholders took upon themselves when they originally subscribed in the even of insolvency subsequently overtaking to company. In our opinion the two decisions in Sorabji Jamsetji v. Ishwardas Jugjiwanda 20 B. 654 and Vaidiswara Ayyar v. Siva Subra mania Mudaliar 31 M. 66 : M.L.T. 250 referred to in the judgment appealed against, were right, and were in accordance with the principles on which this question has always been considered under the English Law and ought to be followed fry us. We dismiss this appeal with costs.


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