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Appeal against refusal of leave to prosecute and continue a suit against a company in liquidation under section 446 of the Companies Act, 1956. Detailed Analysis: The case involved an appeal against the refusal of leave to proceed with a suit under section 446 of the Companies Act, 1956. The appellant, a merchant firm, had dealings with a company that became indebted to them. Subsequently, the company was ordered to be wound up, and the official liquidator was appointed. The appellant filed a claim in the liquidation proceedings. However, the appellant also sought leave to continue a suit against the company and its managing director for a personal decree. The official liquidator opposed the application, stating that the appellant should be bound by the decision in the liquidation proceedings and that there were no realizable assets to pay unsecured creditors. The court highlighted the purpose of the winding-up provisions of the Act, which aim to treat unsecured creditors equally and ensure a fair distribution of assets. Section 446 of the Act automatically stays proceedings against a company upon a winding-up order unless leave is granted by the court. The court's jurisdiction to grant leave is discretionary and must be based on established principles, preventing a scramble for assets. The court referenced similar provisions in the UK Companies Act and emphasized the importance of creditors proving their claims in the winding-up process. The court examined precedents and principles governing the grant of leave to continue proceedings against a company in liquidation. It cited cases where courts allowed proceedings to continue if the company was a necessary party or if specific circumstances warranted it. The court also referred to previous judgments by other judges, outlining the conditions under which leave should be granted, such as when the issue cannot be decided in the winding-up proceedings. Ultimately, the court found that the discretion exercised by the company judge in refusing leave was not in line with established judicial principles. It concluded that the appellant's suit against the managing director, who was a guarantor, required the company's presence as a necessary party. Therefore, the court allowed the appeal, set aside the previous order, and granted leave for the appellant to proceed with the suit, with the condition that any decree obtained should not be enforced against the company without court permission. The court also directed each party to bear their own costs in the appeal.
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