2001 (10) TMI 1056 - HC - Companies Law

Summary

Issues:
Application under section 446 of the Companies Act, 1956 seeking leave to proceed with a second appeal after the lessee-company went into liquidation.

Analysis:
The judgment addresses an application under section 446 of the Companies Act, 1956, regarding the revival of a second appeal after the lessee-company involved in the case had gone into liquidation. The applicant, a registered partnership firm, sought leave to proceed with the second appeal, which was initially dismissed for non-prosecution in 1990 but later restored in 1998. The trustee and beneficiary under the trust opposed the application, arguing that the restoration order was null and void as it was done without obtaining leave from the court with company jurisdiction. The key issue revolved around whether leave could be granted after the appeal court's order and the implications of the appeal court's existing order.

The judgment delves into the provisions of section 446 of the Companies Act, which require that legal proceedings against a company in liquidation should not be commenced or proceeded with without the court's leave. The court highlighted the disjunction in the section, emphasizing that leave cannot be granted for commencing legal proceedings but only for pending matters facing technical impediments. In this case, the second appeal was dismissed before the company's liquidation and subsequently restored without the necessary leave from the court with company jurisdiction, raising questions about the validity of the restoration order.

Furthermore, the judgment considered the jurisdictional aspects, noting that the application was not made by or against the company in liquidation but by the lessee or tenant-firm under the company against the superior landlord. The official liquidator had no objection to granting leave in this context, suggesting that civil court governance could be applicable for condoning defects in such cases. The court discussed the interplay between the Companies Act as a special enactment and the Code of Civil Procedure as a general enactment, highlighting the need to balance jurisdictional considerations and procedural formalities.

Ultimately, the court decided to refer the matter to the Chief Justice to form a larger Bench or send it to the appropriate Appellate Court specializing in company matters for a definitive resolution. The judgment emphasized the importance of judicial comity and the need to address the issues of granting leave post-appeal court order and the fate of the existing appeal court order. The decision aimed to ensure a thorough examination of the legal implications and procedural aspects involved in the case, underscoring the significance of seeking clarity on complex legal matters through appropriate judicial channels.