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S.N. Mukherjee Vs. Krishna Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1933Cal433a
AppellantS.N. Mukherjee
RespondentKrishna Dassi and ors.
Excerpt:
- .....appears to have been raised in the first court, and moreover the finding is that the first party was in possession and there was no dispossession.2. a further argument before us was that the magistrate had no jurisdiction to draw up proceedings against the liquidator without first obtaining the permission of the high court. this argument is based on section 171, companies act, which provides that when a winding up order has been made no suit or other legal proceeding shall be proceeded with or commenced against a company except by leave of the court. that is a provision intended to safe-guard the company's assets against wasteful or expensive litigation in regard to matters which are capable of determination more expeditiously and more cheaply in the winding up. it would hardly.....
Judgment:

Pearson, J.

1. This rule is directed against orders of the Magistrate passed in respect of proceedings under Section 145, Criminal P.C. The petitioner Mr. S.N. Mukherjee is the Official Liquidator of the Karatipara Mazumdar Estate, now in liquidation. The winding up order was passed by this High Court on 20th April 1931. The land in question is a small plot of which the first party Krishna Dassi was given a lease very shortly before the winding up order. Disputes came to a head in December 1931, when the liquidators' men started to put up a fence. Possession has been found to be with the first party, but objection is taken that the first party was out of possession for more than two months before the proceedings were drawn up. The Judge however points out that no such contention appears to have been raised in the first Court, and moreover the finding is that the first party was in possession and there was no dispossession.

2. A further argument before us was that the Magistrate had no jurisdiction to draw up proceedings against the liquidator without first obtaining the permission of the High Court. This argument is based on Section 171, Companies Act, which provides that when a winding up order has been made no suit or other legal proceeding shall be proceeded with or commenced against a company except by leave of the Court. That is a provision intended to safe-guard the company's assets against wasteful or expensive litigation in regard to matters which are capable of determination more expeditiously and more cheaply in the winding up. It would hardly seem reasonable to suggest that a prohibition of that kind is meant to override an express enactment in Section 145, Criminal P.C., by which a Magistrate, if satisfied that a dispute likely to cause a breach of the peace exists, is bound to call on the parties to attend his Court and put in their claims as regards actual possession (the words are mandatory). If it were so, the result would be that in such cases the Magistrate would be powerless to prevent a breach of the peace. It is not a question of making an order disturbing the possession of the liquidator and consequently open to interference by the company Court on that ground. The question is whether the liquidator is in possession at all. He may be or may not be; but he claims that he is. It may also be that the prohibition in Section 171, Companies Act, is not in question here because it is not a case of a legal proceeding against the company. The party to the proceeding is not the company, but the liquidator, and although Mr. Mukherjee happens only to be a party to these proceedings by reason of the fact that he is clothed with that character, it may be that for the purposes of a proceeding under Section 145 he is to be regarded as a separate personality responsible for the action of his men in erecting the fence, though of course he was in fact acting on behalf of the company. It might be said that he is liable to such proceedings in his private capacity if it is his or his servants' action that raises the likelihood of a breach of the peace, and the Magistrate is not bound to look further to see what representative character he may have. I am of opinion however that we need not enter on a discussion of those considerations in the present matter.

3. When the dispute arose between the parties it appears that not only the other party, but also the liquidator and his party went to the police. He is equally responsible for the proceedings being initiated, and in effect invited the intervention of the police and the magisterial-proceedings which followed. The liquidator in such case may be a party to the proceedings, but I am not satisfied that proceedings instituted in this manner can be said to be against the company. In that case he will be much more in the position of a man who has taken action in order to get the proceedings instituted, and if he had not the power to take such steps under the order appointing him liquidator, it would be his own duty to go to the company Court under Section 179 for leave to institute or join in those proceedings for the protection of the interests of the company or he might have applied to the company Court for directions in the matter, for which the order-sheet shows there was ample time between the drawing up of the proceedings and the final hearing. In my opinion therefore in the circumstances of the present case the objection based on Section 171, Companies Act, also fails. The rule is discharged.

Patterson, J.

4. I agree.


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