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Vijay Kumar Dhanda Vs. Sehgal Paper Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtPunjab and Haryana High Court
Decided On
Case NumberCompany Appeal No. 9 of 1984
Judge
Reported in[1985]57CompCas465(P& H)
ActsCompanies Act, 1956 - Sections 391 and 446(2)
AppellantVijay Kumar Dhanda
RespondentSehgal Paper Ltd.
Appellant Advocate R.S. Bindra, Sr. Adv. and; Rajiv Bhalla, Adv.
Respondent Advocate A.C. Jain, Adv.
DispositionAppeal allowed
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........the ejectment applications should be adjourned sine die and they be listed after the decision in company application no. 200 of 1983. aggrieved by these orders, the appellants have filed these appeals.4. in order to appreciate the controversy in the case, it will be apposite to notice the provisions of section 446 of the companies act' at the very threshold. it reads :'446. (1) when a winding up order has been made and the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose. (2) the court which is winding up the company shall, notwithstanding.....
Judgment:

Sukhdev Singh Kang , J.

1. This judgment will dispose of Company Appeals Nos. 9 to 14 of 1984, because they raise common questions of law and fact and the learned counsel for the parties are agreed that they be heard together.

2. The appellants are owners of different flats on the second floor of Skylark Building, 60, Nehru Place, New Delhi. These flats were leased out to M/s. Sehgal Papers Ltd., respondent-company, for a period of three years.

3. The respondent-company, took possession of the premises in dispute on January 23, 1979. The respondent-company defaulted in the payment ofrent. The appellants were thus constrained to file proceedings for the ejectment of the respondent-company before the Rent Controller, New Delhi. Subsequent to the filing of the ejectment applications, the respondent-company went into liquidation. This court thus ordered the official liquidator to function as the provisional liquidator, vide orders dated March 15, 1983. In fact, numerous winding-up petitions were filed in the High Court for the winding-up of the respondent-company, which are still pending. Under Section 446 of the Companies Act, 1956, no suit or legal proceedings pending against a company, for which official receiver has been appointed, shall be proceeded against the company, except by the leave of the court, which has appointed the provisional liquidator. Realising that on the appointment of a provisional liquidator for the respondent-company, its ejectment proceedings shall come to a standstill, the appellants filed applications in the High Court for permission to continue with the proceedings pending before the Rent Controller or the withdrawal of the cases for trial by the High Court. Vide orders dated August 5, 1983, of this court, the ejectment applications were ordered to be transferred to the High Court for trial. The cases have been received in the High Court on transfer. Notices were also issued to the liquidator and he was required to put in his written statement. In the meantime, one Shri M.M. Bengal filed an application under Section 391 of the Companies Act, 1956, seeking approval of the High Court for his scheme to put the company back into production. This petition is pending consideration. Shri M.M. Sehgal filed another application, wherein it was prayed that till the decision of his application for revival of the company, the proceedings or suits pending in various courts including the High Court may be stayed. That application is pending decision. However, on March 13, 1984, the learned single judge, who was seized of the matter, ordered that the ejectment applications should be adjourned sine die and they be listed after the decision in Company Application No. 200 of 1983. Aggrieved by these orders, the appellants have filed these appeals.

4. In order to appreciate the controversy in the case, it will be apposite to notice the provisions of Section 446 of the Companies Act' at the very threshold. It reads :

'446. (1) When a winding up order has been made and the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding-up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose.

(2) The court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-

(a) any suit or proceeding by or against the company ;

(b) any claim made by or against the company (including claims by or against any of its branches in India) ;

(c) any application made under Section 391 by or in respect of the company ;

(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company ;

whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.

(3) Any suit or proceeding by or against the company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that court.

(4) Nothing in Sub-section (1) or Sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court.'

5. On the application of the appellants, their ejectment applications have been transferred for trial to the High Court. Notices in those applications have been issued to the liquidator calling upon him to put in replies. This shows that the trial of these ejectment applications filed by the appellants against the respondent-company has commenced and notices to the opposite side have been issued. This procedure has been adopted in accordance with the provisions of Sub-section (2) of Section 446, ibid, which authorises a court which is winding up a company to entertain or dispose of any suit or proceeding by or against a company which is in the process of being wound up. Once that trial has commenced in the ordinary course of things, it should come to a conclusion. The decision to adjourn the trial of the ejectment applications filed by the appellants sine die is not in consonance with the orders dated August 5, 1983, transferring the ejectment proceedings from the Rent Controller to the High Court and further orders for their trial. The interests of justice require that the matter should not be kept in abeyance.

6. We, therefore, allow these appeals and set aside the impugned orders.

7. Parties are directed through their respective learned counsel to appear before the learned single judge on November 2, 1984. No costs.


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