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Official Liquidator of Maharaja Kishangarh Mills Limited (In Liquidation) Vs. Mahesh Metal Works - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtRajasthan High Court
Decided On
Case NumberS.B. Company Misc. Application No. 55 of 1972
Judge
Reported in1972WLN961
AppellantOfficial Liquidator of Maharaja Kishangarh Mills Limited (In Liquidation)
RespondentMahesh Metal Works
DispositionApplication allowed
Cases ReferredOfficial Liquidator v. Bhagwat Saran Garg and Ors.
Excerpt:
.....is brought by or against a company, it shall be tried as a suit only. in this case it was for the official liquidator to opt whether he was to file a suit or a claim only; the difference being in form only and not in substance.;the dispute raised by the official liquidator regarding arrears of rent and eviction of a tenant can be treated as claim under section 446(2)(b) of the act.;it is held that this court has jurisdiction to entertain the application. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant..........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 301 by or in respect of the company(d) any question of properties or any other question whatsoever, whether of jaw 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.....
Judgment:

R.D. Gattani, J.

1. This order will decide point for determination No. 1 which reads as under:

Has this Court jurisdiction to entertain the application.

2. This application has been filed by the Official Liquidator of Messrs. Maharaja Kishangarh Mills Limited Kishangarh (in liquidation) under Section 446(2) of the Companies Act for the recovery of arrears of rent and eviction of the non-applicant from the disputed premises. In para No. 10 of the application it has been said that by virtue of Section 446(2) of the Companies Act, 1956, this Court has exclusive jurisdiction to try and entertain any suit or any proceedings by or against this Company (In liquidation). The non-applicant in reply has not admitted para 10 the application. That has led to the framing of above point for determination.

3. However, when parties were heard on this point it was urged by the learned Counsel for the non-applicant that an application under Section 446(2) is no doubt entertainable by this Court, but in the present case the Official Liquidator should have filed a suit against the non-applicant under Section 446(2)(a) of the Act and not the present application for the reliefs claimed The jurisdiction of this Court to fear that suit is also not denied by the non-applicant. So the point which remains for consideration is whether the Official Liquidator should have filed a suit for the reliefs claimed in the application.

4. The contention of the learned Counsel for the non-applicant is that the relationship between the parties being that of landlord and tenant, the Official Liquidator should have filed a regular suit with prescribed court fee for arrears of rent and eviction of the non-applicant from the disputed premises, as the questions of law arising out of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, can not be gone into the present proceedings. The argument from the other side is that the Official Liquidator could have filed either a suit under Section 446(2)(a) of the Act or a claim in the present form under Section 446(2)(b) of the Act for the reliefs sought for and if the Official Liquidator has preferred to file the claim- in the form of an application be cannot be compelled to change this application into a suit or that his application cannot be entertained. It his been further urged that with the amendment of Section 44(c) of the Act in the year 1969 and insertion of Clauses (b), (c) and (d) in sub-section(2) of Section 44ft the scope of this sub-section has been much widened and the object for this is to get claim by or a against a company in liquidation settled more expeditiously and in a sum-nary manner by preferring the claim in the from of an application. It has there been contended that the present claim is quite simple and no complicated questions of law are involved in it. Of course the provisions of the Rajasthan Premises (Control of Rent and (Eviction) Act will be applicable to this application as well and the rights and liabilities of the parties shall be governed under the provisions of that Act.

5. In order to appreciate the ticklish point involved in this case rule of Section 446 of the Act is reproduced:

446. Suit stayed on winding up order:.

(2) The Court which is winding up the company shaft, notwithstanding any thing 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 301 by or in respect of the company

(d) any question of properties or any other question whatsoever, whether of Jaw 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.

It might be stated here that cLauses (b), (c) and (d) of Sub-section (2) have been added by Amending Act No. LXV of 1960 Whereas Clause (a) refers to any 'suit or proceeding by or against the company' Clause (b) speaks of any such claim The relevant dictionary meanings of the words claim and suit are as follows:

'Claim': to demand or ask for as rightfully belonging or due to one; a demand for something rightfully or allegedly due; a right or title to something;

'Suit': a persuit; action of suing; action to secure justice in a court of law; attempt to recover a right or claim through legal action; an act of suing, pleading or requesting. Vide Webstor's New World Dictionary (Second College Edition).

6. Apart from the technical difference which these words have come to denote there appears to be no fundamental difference in their meaning. We know a suit is filed with the presentation of a plaint; for raising a claim a mere application will do. It is, however, to be borne in mind that inspite of the provisions for 'a suit or proceeding by or against the Company' the legislature thought fit to introduce 'any claim made by or against the Company (Including claims by or against any of its branches in India' as Sub-clause (b) of subSection (2) of Section 446 In my opinion this was done in order that ordinary claims by or against Company may be disposed of in a quicker manner, i.e. summarily and while doing so the Court may not have to follow a lengthy procedure which it has to follow while deciding a suit. Next comes the question what is the significance in retaining the wordings of Clause (a) when the word 'claim' was introduced in Clause (b) What I have understood the import of both the cLauses (a) and (b) is that ordinarily the court is to decide the claims summarily, but if it finds that a particular claim is complicated and it would not be in the interest of justice to decide it in a summary manner, it may direct that the claim will be converted into a suit and then it will decide at following the procedure laid down in C.P.C. So far a claim remains in the form of application only and is not converted as a suit the Court is not bound to follow the elaborate procedure laid down in C.P.C, for the purpose of deciding a suit. Of course if a party from the very beginning files a suit, i.e. if from the very beginning a suit is brought by or against a Company, it shall be tried as a suit only. In this case it was for the Official Liquidator to opt whether he was to file a suit or a claim only; the difference being in form only and not in substance. The Official Liquidator decided to file a claim only. Looking to the facts of dispute and the points for determination, I am of the view that complicated questions of facts and law are not at all involved in this case the question of giving any direction to the Official Liquidator for convening (the claim into a suit does not arise. Of course while deciding the claim care will be taken that it is decided after taking into consideration the different provisions of law relied upon by the parties.

7. The dispute raised by the Official Liquidator regarding arrears of rent and eviction of a tenant can be treated as claim under Section 446(2)(b) of the Act and decided as such vide Official Liquidator v. Bhagwat Saran Garg and Ors. (1970) Vol 40 Reports of Company Cases 657.

8. For all what has been stated above it is held that this Court has jurisdiction to entertain the application. This point is, therefore, decided in favour of the applicant.


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