2004 (5) TMI 326 - HC - Companies Law

Summary

Issues:
- Application under section 446 of the Companies Act, 1956 for permission to proceed against a company in liquidation.
- Invocation of a bank guarantee by the applicant-company.
- Permission to continue a suit before the Delhi High Court despite winding up order.
- Transfer of suit to the winding up Court under section 446(3) of the Act.

Analysis:
1. The applicant-company sought permission under section 446 of the Companies Act to proceed against a company in liquidation regarding a dispute over the non-performance of an agreement and the invocation of a bank guarantee. The applicant-company entered into an agreement with the respondent-company for space segment capacity on a satellite, with the respondent failing to fulfill its obligations. Consequently, the applicant invoked a bank guarantee provided by UTI Bank, leading to a legal dispute.

2. The Court considered the Official Liquidator's stance that the suit should be transferred to the winding up Court under section 446(3) of the Act. However, the Court noted that the suit was initiated before the winding up order and involved a claim against UTI Bank located in New Delhi. After examining the circumstances, the Court found it just and proper to allow the suit to continue before the Delhi High Court, emphasizing the convenience and fairness of maintaining the proceedings at the original court.

3. In light of the above analysis, the Court granted permission to the applicant-company to proceed with the suit before the Delhi High Court, subject to a condition of depositing a specified sum with the Official Liquidator for expenses. It was also directed that any decree obtained in the suit should not be executed without further orders from the Court, ensuring oversight of the proceedings in the context of the winding up order.

4. The Court's decision highlighted the balance of convenience and the specific circumstances of the case, emphasizing the importance of allowing the suit to continue at the original court where it was initiated. The judgment provided clarity on the application of section 446 of the Companies Act in the context of legal proceedings involving companies in liquidation, ensuring a fair and practical approach to resolving disputes in such situations.