1991 (10) TMI 228 - HC - Companies Law

Summary

Issues:
- Appeal against conditions imposed in granting leave under section 446 of the Companies Act, 1956 for the appellant to continue its suit against a company in liquidation.

Analysis:
The judgment pertains to an original side appeal against an order granting leave under section 446 of the Companies Act, 1956 for the appellant to pursue a suit against a company in liquidation. The suit was filed for recovery of a specific sum, subsequent to a winding-up order against the respondent-company. The trial judge imposed conditions on granting leave, including restrictions on enforcing the decree against specific assets held as security and exclusion from dividend share in case of deficiency by sale of securities. The appellant contested the correctness of the conditions, particularly condition (b) related to dividend exclusion. The judgment clarifies the application of section 529A of the Act, emphasizing the priority of workmen's dues and debts due to secured creditors in the winding-up process.

The judgment delves into the interplay between sections 529A and 529(1) of the Companies Act, outlining the rights of secured creditors and workmen in a liquidation scenario. It highlights the pari passu ranking of workmen's dues with secured creditors' charges and the preferential treatment of unpaid dues suffered by secured creditors. The judgment elucidates the options available to secured creditors under section 47 of the Provincial Insolvency Act, emphasizing the creditor's right to recover any balance due after realizing security. It underscores the application of insolvency law in determining creditor rights and the treatment of interest claims in the liquidation process.

Regarding the specific conditions imposed by the trial judge, the judgment critiques condition (b) for inaccurately restricting the appellant's right to claim beyond section 529A provisions. It argues that the appellant retains the ability to prove the balance due, akin to other creditors, subject to legal provisions. The judgment suggests that there is no necessity to specify conditions for granting leave, as the statutory provisions of the Act automatically apply. It emphasizes the role of the official liquidator in representing the defendant-company in liquidation and the court's duty to consider relevant legal provisions while passing a decree in the suit.

Ultimately, the judgment modifies the trial judge's order to grant leave without explicitly mentioning conditions, as the statutory provisions govern the proceedings. It references legal precedents to support the view that conditions are unnecessary when seeking leave under section 446 of the Act. The appeal is allowed without costs, concluding the analysis of the issues raised in the original side appeal.