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Ananta Mills Ltd. (In Liquidation) Vs. City Deputy Collector, Ahemedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtGujarat High Court
Decided On
Case NumberCompany Application Nos. 112 of 1970 and 59 of 1971
Judge
Reported in(1972)GLR633
ActsCompanies Act, 1956 - Sections 456(1), 467, 511, 531, 531A, 536 and 537
AppellantAnanta Mills Ltd. (In Liquidation)
RespondentCity Deputy Collector, Ahemedabad and ors.
Appellant Advocate V.B. Patel, Adv.
Respondent Advocate B.R. Shah,; Ashok B. Mehta and; I.M. Nanavati, Advs.
Cases ReferredSuraj Bansi Koer v. Sheopersad Singh and
Excerpt:
company - attachment - sections 456 (1), 467, 511, 531, 531 a, 536 and 537 of companies act, 1956 - prayer raising of attachments levied by first and second respondents on behalf of several creditors of company and for direction directing second respondents to delete certain entries in record of rights in issue - purpose of attachment to prevent alienation of property - attaching creditor does not acquire by attachment any interest in property - object of winding up is to put all unsecured creditors upon equality and to pay them pari passu - attachments levied by first and second respondents at instance of different creditors of no effect against official liquidator - for proper realisation of assets and disposal attachments raised - first and second respondents directed to remove entries.....d.a. desai, j. 1. this summons is taken out by the official liquidator of ananta mills ltd. (in liquidation) (hereinafter referred to as' the company') praying for an order for raising the attachments levied by the first and second respondents on behalf of several creditors of the company and for a direction directing the second respondent to delete certain entries made in the record of rights in respect of the properties of the company pursuant to the aforementioned attachments. 2. the indokem private ltd. filed company petition no. 8 of 1967 on march 24,1967, praying for an order for winding up the company. by an order made on september 11,1967, the company was ordered to be wound up and the official liquidator was appointed as liquidator of the company. on the same day, the liquidator.....
Judgment:

D.A. Desai, J.

1. This summons is taken out by the official liquidator of Ananta Mills Ltd. (in liquidation) (hereinafter referred to as' the company') praying for an order for raising the attachments levied by the first and second respondents on behalf of several creditors of the company and for a direction directing the second respondent to delete certain entries made in the record of rights in respect of the properties of the company pursuant to the aforementioned attachments.

2. The Indokem Private Ltd. filed Company Petition No. 8 of 1967 on March 24,1967, praying for an order for winding up the company. By an order made on September 11,1967, the company was ordered to be wound up and the official liquidator was appointed as liquidator of the company. On the same day, the liquidator took actual possession of the assets of the company. In the meanwhile, a scheme of compromise and/or arrangement between the company on the on hand and its different classes of creditors and members on the other hand was proposed, and the court sanctioned the scheme of compromise and/or arrangement as per the order made on October 15,1969, and simultaneously cancelled the order made on September 11,1967, winding up the company. The sponsors of the scheme filed Company Application No. 87 of 1970 disclosing their inability to further implement the scheme, whereupon the court appointed the official liquidator as the provisional liquidator, who pursuant to the order of the court, took possession of the assets of the company on October 5,1970. Thereafter, the court, in exercise of its powers conferred upon it by section 392, made an order for winding up the company and appointed the official liquidator as the liquidator of the company. The liquidator, after obtaining directions under section 457 read with rule 139, proceeded to sell the textile unit of the company and land belonging to the company and on Company Application No. 112 of 1970 the sale made in favour of respondent No. 7 for Rs. 34,00,011 was sanctioned. There was no secured creditor and the court directed that, on deposit of 25 per cent. of the purchase price, the liquidator should hand over possession of the textile unit and the lands of the company to the purchaser free from all encumbrances. The balance of the purchase price was to be paid by yearly instalments. One of the company and especially either machinery or lands, the liquidator shall execute an indenture of sale in favour of the intending purchaser and purchase price received would be deposited towards the next following instalment. It so happened that the purchaser proceeded to sell a portion of the land, which he considered surplus, and, at that time, it transpired that all the immovable properties of the company were attached by its various creditors. The purchaser thereupon addressed a letter, dated March 20,1971, to the liquidator requesting him to get attachments raised so as to enable him to transfer a marketable title to the intending purchasers of land. Pursuant to this letter, the liquidator has taken out this summons for the aforementioned relief.

3. A notice of the summons was served upon the various respondents. Respondants Nos. 1 and 2 are the officers of revenue department, who have levied attachments, at the instance of various creditors of the company, Respondents Nos. 3, 4 and 5 are the creditors of the company, at whose instance, respondents Nos. 1 and 2 have levied attachments. Respondent No. 6 is the Textile Labour Association, which has obtained certain directions under the Payment of Wages Act and in execution of the directions, the first and second respondents have levied attachments.

4. The first and second respondents have levied the following attachments on the immovable properties of the company !

-----------------------------------------------------------------------Sr.No. Date Name of the Creditor Amount forwhich attachmentis levied.-----------------------------------------------------------------------1 03-10-1966 Employees State Insurance 1,32,131.00Corporation2. 24- Authority under the Paymentof Wages Act, Ahmedabad. 1,22,140.00(for bonus and court-feespayable to State Government) 2,66,240.353. 25-10-1966 Regional Provident FundCommissioner 42,208.724. 05-11-1966 Authority under the Paymentof Wages Act 1,27,240.5495,320.285. 07-12-1966 Collector of ElectricityDuty 44,115.766. 07-12-1966 Regional Provident FundCommissioner, Ahmedabad. 42,188.00(Contributions for themonths of May and September,1966) 42,188.007. Regional Provident FundCommissioner, Ahmedabad. 4,27,000.00-----------------------------------------------------------------------

5. The orders by which attachments have been levied except the one in respect of item No. 7, have been annexed at annexure 'A' collectively at pages 10 to 20. Pursuant to the attachments levied, entries have been made in the record of rights in respect of the various pieces of land belonging to the company and a copy of the record of rights in respect of Survey No. 314, showing the entries in respect of different attachments, has been produced at page 23, annexure 'C'.

6. The aforesaid attachments have been levied by respondents Nos. 1 and 2, who are officers of the revenue department having power to levy attachments under the Land Revenue Code. The validity of the attachments he amounts for which attachments are levied or the process by which they are levied are not at all in dispute. The question raised by the liquidator is that, once a winding up order is made, the attachment no more survives and he would be able to deal with the property as if it was not attached.

7. On a winding-up order being made under section 443, the official liquidator attached to the High Court becomes the liquidator of the company by virtue of his office as provided in section 449. Since the official liquidator, by virtue of his office, becomes the liquidator of the company, it is his duty, under section 456, to take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. In view of sub-section (2) of section 456, on the making up of the winding-up order, all the property and effects of the company shall be deemed to be in the custody of the court as from the date of the order for winding-up of the company. Therefore, the liquidator, acting on behalf of the court, has to take into his custody or under his control, all the property, effects and actionable claims of the company. Reading section 456(1) and (2) together, it would mean that the liquidator would keep in his actual custody the property of the company and the custody of the liquidator would be deemed to the court.

8. The next step in the winding-up proceeding is that the liquidator after collecting all the assets of the company must proceed to sell the properties of the company. Section 457(1) enables the liquidator, with the sanction of the court, to sell the immovable and movable property and actionable claims of the company by public auction or private contract, with power to the whole thereof to any person or body corporate or to sell the same in parcels. As soon as may be after the winding-up order, section 467(1) casts a duty upon the court to settle a list of contributories and to cause the assets of the company to be collected and applied in discharge of its liabilities. The duty is cast on the court but the court would act through the liquidator. Therefore, it would be the primary duty of the liquidator. After taking into custody all the properties of the company or after collecting all the custody all the properties of the company or after collecting all the assets of the company, as provided in section 467(1), to take the next step, namely, to apply these funds in discharge of the liabilities of company.

9. If while collecting the assets of the company, the liquidator meets with some obstacle, it is obligatory upon him to get the obstacle removed by taking appropriate proceedings in the court which is winding up the company. The object of the winding-up provisions of Companies Act. is to put all unsecured creditors upon an equality and to pay them pari passu. All the unsecured creditors form one class. The winding-up order made on the petition of a creditors or a contributory enures for the benefit of all creditors and contributories and that is why it is always styled as a representative action. When a company is in insolvent circumstances or in financial doldrums, it is quite likely that different creditors might try to secure a march over those similarly situated. Provision for the winding-up of companies are meant for just and equitable distribution of the assets of the company amongst various person interested in it. Consequently, once a company is ordered to be wound up, a scramble for taking away its assets must be avoided. All the assets of the company must be available for just and equitable distribution amongst the various interests having claims against the company. If by some action of creditor this basic concept of just and equitable distribution amongst the various interests having claims against the company. If by some action of creditor this basic concept of just and equitable distribution of the assets of the company is sought to be defeated, the liquidator has to step in and resist such benefit going to some to the exclusion of rest similarly situated. To repeat the words of Lindley J. In re Oak Pits Colliery Co., the object of the winding-up provisions of the Companies Act is to pay all unsecured creditors upon equality and pay them pari passu. This principle has secured statutory recognition in section 511 of the Companies Act, which provides as under :

'Subject to the provisions of this Act as to preferential payments, the assets of a company shall, on its winding-up, be applied in satisfaction of its liabilities pari passu and, subject to such application, shall, unless the articles otherwise provide be distributed among the members according to their right and interests in the company.'

10. If the underlying principle of the winding-up provisions of the Companies Act is to treat all unsecured creditors on a footing of equality and to pay them pari passu, it is necessary to examine the position of an unsecured creditor, who has obtained an attachment of the properties of the company vis-a-vis another unsecured creditor who has not obtained any attachment of the properties of the company and who, in all other respects, stands on a par with the attaching creditor. This necessitates examination of the legal effect of an order of attachment on the property of a debtor obtained by a creditor either in the civil court or by attachment levied by the statutory authorities, who effect recoveries of dues as arrears of land revenue through the machinery provided in the Bombay Land Revenue Code. For the purpose of the present discussion, an attachment levied by a court under Order 21, rule 54(1), and the attachment levied by the revenue authorities for recovery of arrears of land revenue under the Bombay Land Revenue Code may be treated on par.

11. In fact, Order 21, rule 4, of the Code of Civil Procedure, provides what exactly is the concept of attachment levied on immovable property by the court in process of execution of a decree. It provides that where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. By levying an attachment, the person on whose property attachment is levied is restrained form dealing with the property. Attachment thus only prevents alienation. It does not confer title, as observed in Motilal v. Karrabuldin. Thus, attachment of an immovable property creates no interest in favour of the attaching-creditor in the property attached. Attachment in course of execution of a decree, levied against the property of a judgment-creditor in the property attached. Attachment is undoubtedly a step in the process of execution but a mere attachment of property, even at the instance of the court, would not create any equity in favour of the attaching-creditor. Other judgment-creditors of the same judgment-debtor would equally be entitled to a pro-rata distribution in the sale proceeds of the property attached at the instance of distribution in the sale proceeds of the property attached at the instance of one judgment-creditor. A judgment creditor thus gets no priority, merely because he is an attaching creditor, save this that, in the normal civil proceedings, he might secure a march over those creditors, who have not obtained decrees. But as between judgment-creditors of the same judgment-debtor, all will have the right to share pro rata the proceeds of sale of the property of a judgment-debtor attached by one judgment-creditor. An extreme proposition was sought to be canvassed in Goverdhandas Vallabhdas v. Official Liquidator, Electro-Metal Refining Co. Ltd. that an attaching creditor is a secured-creditor and, negativing this contention, it was observed that the bulk of authority in India would seem to point to the fact that technically an attaching creditor is not lal secured-creditor, although, it was observed that the might have certain rights by reason of his attachment. Mulla in the Code of Civil Procedure, 13th edition, page 318, has observed as under :

'Attachment creates no charge or lien upon the attached property. It only confers a right on the decree-holder to have the attached property kept in custodia legis for being dealt with by court in accordance with law. It merely prevents and avoids private alienation; it does not confer any title on the attaching-creditors.'

12. The purpose of the attachment thus appears to be to prevent private alienation of the property but the attaching creditor does not acquire, by merely levying attachment, any interest in the property.

13. In Prem Lal Dhar v. Official Assignee, it was observed that 'attachment in this country only prevents alienation, it does not confer any title.' In reaching this conclusion, a distinction was drawn between the attachment levied by the English courts upon seizure under a writ of fi. fa. and attachment in our country. Mr. Shah, in this connection, however pointed out that this statement of law has not been approved by the Privy Council. In Anantapadmanabhaswami v. Official Receiver, after referring to Motilal v. Karrabuldin and Frederick Peacock v. Madan Gopal it was observed that the Madras High Court in Kristnaswamy Mudaliar v. Official Assignee of Madras, ignored the opinion expressed in Suraj Bansi Koer v. Sheopersad Singh and took a dictum in the judgment of the Board in Motilal's case torn form its context and used it for a purpose which it did not have in view. It is true that the Privy Council reserved its opinion on the question whether the attachment created a lien or charge or conferred a title. But, that was back in 1933. Since then, the view was crystallised that attachment in this country merely prohibits private alienations by the persons whose property is attached but creates no interest in the property in favour of the attaching-creditor. In view of the doubt expressed by the Privy Council, it is not necessary for me to refer to Kristnasawmy Mudaliar's case in greater detail. But, I have no doubt in my mind that an attachment of execution of an order, executable as a decree by the authorities under the Land Revenue Code, merely prohibits further alienation of the property but creates no interest in the property in favour of the attaching-creditor.

14. If such be the effect of attachment, the further question is what is the effect of an attachment levied prior to the commencement of the winding-up proceedings and no further action having been taken till the liquidator stepped in, on winding-up order being made, collected the assets and sold away the property. The larger question is could the attachment continue on the property even in the hands of the purchaser, who purchased the property, through the official liquidator free of all encumbrances. I would not decide the questions on a short submission that as the court has sold the property free of all encumbrances, the encumbrance, if any, created by the attachment would no more survive. I would broadly examine the question in the wider context. The question in terms would be whether the attachment levied on the properties of a company, without any further action being taken, or bringing the property to sale, would survive, after the court makes a winding-up order and the liquidator proceeds to act under section 466(1) and section 467(1). Now, Mr. Shah is right in saying that the liquidator could have moved this court by taking out a summons requesting the court to get transferred all proceedings in which attachments were levied and to deal with the matter Section 446(3) confers power upon the court to transfer 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, not with standing anything contained in any other law for the time being in force, and to dispose of the same. This section would apply on the assumption that the revenue authority levying attachment under the provisions of the Land Revenue Code would be a court. It is not necessary to decide that question. But the expression 'court' will have to be given a wider meaning in order to enable the court winding-up the company to bring before it all proceedings against the company or by the company wherever pending so as to dispose them of with a view to accelerate the process of winding-up. But, apart from that, the question is whether the attachment levied prior to the winding-up order being made, without any further action being taken, would continue to be effective even when the property comes under the custody of the court and the court exercises its custody through the liquidator.

15. It is at this stage that the court will have to consider the true purpose of the winding-up proceeding. As stated earlier and as it appears to be well-settled that the object of winding-up provisions of the Companies Act is to put all unsecured creditors upon equality and to pay them pari passu, a principle which has received statutory recognition in section 511. If all unsecured creditors are to be put on terms of equality and are entitled to be paid pari passu, could an attaching creditor be entitled to steal a march over other unsecured creditors when, after attaching the property, nothing further appears to have been done. It may be that before the commencement of the winding-up proceeding, if a creditor has attached the property, brought it to court auction, got it sold and realised his debt, nothing further could be done, unless, by some facts of convincing nature, it can be shown to be a payment which would be fraudulent preference made within six moths from the commencement of the date of the winding-up, if the case falls within the four corners of section 531A. But when a judgment-creditor has attached the property of the company and thereafter a winding-up order is made without any further step being taken by such judgment creditor, he would unquestionably be an unsecured creditor, like any other unsecured creditor, who had neither filed a suit nor obtained a decree nor attached the property. Both would be on par and it is this treatment which would avoid scramble for the assets of an insolvent company or dishonest distribution by those in charge of the company by giving fraudulent preference to their near and dear ones. Provisions such as those contained in sections 531, 531A, 536, 537, 511, 467 and 456(1) when read together reveal an underlying scheme by which not only the scramble for the assets of an insolvent company could bel wholly avoided but if any creditor has obtained some unfair advantage to the exclusion of others similarly situated, the liquidator must step in and deny to him such an advantage, The principle behind avoidance of fraudulent preference at the instance of the liquidator is the same. A payment impeached as fraudulent preference, is made when the company is a going concern by the directors within the scope of their authority and to a creditor to wipe out a subsisting enforceable debts. It would none-the-less be avoided and money paid could be reclaimed if the payment is made with intent to choose one or some leaving out many similarly situated. Such payment is within the reach of the liquidator. The object behind such provision is to see that all the assets of the insolvent company are available to the liquidator for just and equitable distribution amongst the unsecured creditors, who are to be paid pari passu.

16. What effect can then be given to an attachment levied by a creditor who, but for the attachment, would stand in company with all other creditors similarly situated. In my opinion, the short answer to the question would be to ignore the attachment or, as a winding-up court, raise the attachment with a view to remove an impediment in collection or realisation of the assets of the company which is being wound up, for its just and equitable distribution. If attachment is held subsisting giving some right to the attaching creditor, it would strike at the root of the principle whereby all unsecured creditors are to be paid pari passu. As soon as a winding-up order is made directors' authority to deal with the property including the authority to deal with the property including the authority to alienate property comes to an end. If the purpose of attachment is to prohibit alienation, it is achieved against the company by the winding-up order. The attachment has by that time outlived its utility and at any rate it cannot be binding on the liquidator,

17. Section 529 of the Companies Act provides as under :

'529. (1) In the winding-up of an insolvent company, the same rules shall prevail and be observed with regard to -

(a) debts provable;

(b) the valuation of annuities and future and contingent liabilities and

(c) the respective rights of secured and unsecured creditors;

as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent.

(2) All persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company, may come in under the winding up, and make such claims against the company as they respectively are entitled to make by virtue of this section :

Provided that if a secured creditor instead of relinquishing his security and proving for his debt proceeds to realise his security, he shall be liable to pay the expenses incurred by the liquidator (including a provisional liquidator, if any) for the preservation of the security before its realisation by the secured creditor.'

18. Section 529 of the Companies Act will have the effect of incorporating sections 51 and 52 of the Provincial Insolvency Act, 1920, in the Companies Act. Section 51 provides that :

'Where execution of a decree has issued against the property of a debtor, no person shall be entitled to the benefit of the execution against the receiver except of assets realise in the course of the execution by sale or otherwise before the date of the admission of the petition.'

19. Section 52 provides that :

Where execution of a decree has issued against any property of a debtor which is saleable in execution and before the sale thereof notice is given to the court executing the decree that an insolvency petition by or against the debtor has been admitted, the court shall, on application, direct the property, if in the possession of the court, to be delivered to the receiver, but the costs of the suit in which the decree was made and of the execution shall be a first charge on the property delivered, and the receiver may sell the property or an adequate part thereof for the purpose of satisfying the charge.'

20. At this stage, I would also refer to the rules, viz., rules 232 and 233 of the Companies (Court) Rules, 1959. Rule 232 provides that :

'The duties imposed on the court by sub-section (1) of section 467 with regard to the collection of the assets of the company and the application of the assets in discharge of the company's liabilities shall be discharged by the official liquidator as an officer of the court subject control of the court and to the proviso in section 643(2).'

21. Rule 233 provides that :

'For the discharge by the official liquidator of the duties imposed by sub-section (1) of section 467 and the last preceding rule the official liquidator shall, for the purpose of acquiring and retaining possession of the property of the company, be in the same position as if he were a receiver of the property appointed by the court, and the court may on his application enforce such acquisition or retention accordingly.'

22. The combined effect of section 529 of the Companies Act, sections 51 and 52 of the Provisional Insolvency Act, and rules 232 and 233 of the Companies (Court) Rules will be to place the official liquidator in the position of a receiver of an insolvent. The receiver in insolvency is not bound by the attachment levied but no further action taken, when an adjudication order is made and receiver is appointed in respect of the insolvent's property (sic). That should be the position of the official liquidator qua the property of a company ordered to be wound up. Mulla in Civil Procedure Code, 13th edition, at page 318 under the head-note, 'Effect of order of adjudication on attachment', has observed as under :

'Where a judgment-debtor has been adjudicated an insolvent, the whole of his property vests in the Official Assignee. What is the effect of an order of adjudication on an attachment levied prior to the date of the adjudication order Has the attaching creditor, by reason of his prior attachment, priority over the Official Assignee in respect of the property attached by him prior to the date of adjudication order, or is the Official Assignee entitled to claim the attached property by virtue of the adjudication order as part of the property of the insolvent The courts in India had held that whether the attachment is before judgment or, in execution of a decree, the attaching creditor had no priority over the Official Assignee. These decisions were based on the ground that an attachment in India does not create any charge or lien upon the attached property such as attaches in England upon seizure under a writ of fi. fa.; and that once the order of adjudication is made, the attaching creditor is relegated to the same position as other creditors.'

23. I think no useful purpose would be served by any further discussion. In order to give full effect to the principle underlying the winding-up provisions of the Companies Act, the only approach to the problem would be that an attachment simpliciter of the properties of a company, which was subsequently ordered to be wound up without any further action being taken, would be of no consequence or effect against the official liquidator and the property could be disposed of by the official liquidator, wholly ignoring the attachment. Any other approach would run counter to the underlying thread in various provisions in the winding-up chapter of the Companies Act. It would also give rise to a most undesirable tendency. A company in insolvent circumstance could invite some of its chosen few creditors to file suits and obtain attachments. In order to do away with some such tendency, which was brought to the notice of this court (vide In re Manekchowk Ahmedabad .) the court must ignore the attachment as of no consequence. Therefore, the conclusion is inescapable that the various attachments levied by the first and second respondents at the instance of different creditors would be of no effect against the official liquidator and they could be ignored. For proper realisation of the assets and disposal thereof, they should be raised.

24. Mr. Shah urged that the court need not examine this aspect in this proceeding because the authority levying the attachment carries the power to raise it and the proper thing for the liquidator to do was to approach the first and second respondents informing them that, in view of the winding-up order, the attachment has ceased to be effective and they may be raised. That, of course, is true. Such a procedure could have been adopted. But, on that account, the jurisdiction of this court under section 446 to deal with the matter cannot be taken away. At this stage, to reject the summons, on the ground that another procedure is available, would be attaching undue significance to a mere technicality.

25. The powers of the winding-up court are to be found in section 446. The court winding-up the company shall have power and jurisdiction to entertain or dispose of any claim made by or against the company (including claims by or against any of its branches in India.) The grammatical construction of the expression 'claim against the company' would include a claim that can be realised by proceeding against the property of the company. The attaching creditor would treat the attachment as an incident of the claim which was being realised. Such a claim could and must be investigated by the court winding-up the company. Therefore, this court must find out now whether there is any cloud legally subsisting on the property of the company. The attachment, if permitted to subsist, may raise some cloud over the clean title of the assets of the company. If that cloud can be legally sustained, the court must give effect to it. If it cannot be sustained, this court has jurisdiction being exercised by this court.

26. Alternatively, Mr. Shah urged that this court could cell for all proceedings wherever pending by or against the company, which is being wound up, in exercise of the powers conferred by section 446, and deal with the proceedings in an appropriate manner. That question might necessitate examination of the true import of the expression 'court' in section 446(2) and I do not consider it necessary to deal with it in this case.

27. It was lastly urged that respondents Nos. 1 and 2 must have incurred costs in levying the attachments and in proceedings incidental thereto and, in view of section 52 of the Provincial Insolvency Act, costs and expenses, incidental to the levying of attachments, would be a first charge on the sale proceeds realised from the sale of the property. The sale has been effected by the liquidator. It is possible that some expenditure might have been incurred in levying the attachments. What is its effect need not be decided now. As and when the liquidator invites those claiming anything from the company, to prove their claims, it would be open to the first and second respondents to claim any priority, incidental to the levying of attachments. This aspect can be examines by the liquidator at that stage. It is not necessary to give any direction on this point in this matter.

28. Before parting with this matter, I must deal with one submission of Mr. Shah. It was urged that section 537 provides a clue to the problem that an attachment cannot be wholly ineffective against the liquidator. It was urged that, if that was so, it was not necessary to specifically provide in section 537 that an attachment levied, without the permission of the court, after the commencement of the winding-up, would be void. In my opinion, there is no merit in the submission. In fact, for a long time argument was advanced and was seriously considered that an attachment itself may create some equity in favour of the attaching creditor. Such an attachment may have been levied prior to the commencement of the winding-up proceedings or between the presentation of the petition and the making up of the winding-up order. If an argument that an attachment may create some equity in favour of the attaching creditor was to be considered as of some substance, the Parliament never wanted such an argument to be presented and accepted in respect of an attachment since the date of the commencement of the winding-up order. In other words, section 537 might indicate that the court may consider what is the effect of an attachment levied prior to the commencement of the winding-up proceedings. But, nothing was left for the interpretation of the court in respect of an attachment levied after the commencement of the winding-up, which was declared to be void. Therefore, section 537(1) may provide a clue in support of the conclusion reached by me but would not run counter to the submission on behalf of the liquidator.

29. It was, however, urged that, before raising the attachment in this case, we must bear in mind sub-section (2) of section 537 which provides that 'nothing in this section applies to any proceedings for the recovery of any tax imposed or any dues payable to the Government'. The full import of sub-section (2) cannot be examined in this case because it is not made clear as to whether the recovery was of any tax imposed or dues payable to the Government. Creditors are such as the Employees' State Insurance Corporation, Regional Provident Fund Commissioner, Ahmedabad Electricity Co. Ltd. and the authority under the Payment of Wages Act at whose instance the attachments have been levied. Even in respect of all dues payable to the Government including tax or impost, section 537 will have to be read subject to the priorities indicated in section 530 and the preferential treatment will have to be given to the tax or cess which has become due and payable within the twelve months next before the date of the winding-up. In the absence of relevant facts, the effect of sub-section (2) of section 537 cannot be examined in this case and I do not propose to examine the same. In view of the above discussion, it is crystal clear that the attachments, which have been set out in detail, are of no effect and must be raised and respondents Nos. 1 and 2 are directed to remove the entries from the Government records made pursuant to the attachments levied. Order accordingly. Parties to bear their respective costs. The costs of the liquidator to come out of the assets of the company.


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