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TMI Blog1936 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... etters Patent appeal allege that the learned Company Judge had no jurisdiction to pass a decree and direct its execution, and that the order appealed-against was illegal and was passed with material irregularity, and that the official liquidator could only file a suit for the realisation of the amount, and the procedure adopted was illegal. This matter arose from an application by the liquidator of the Agra Spinning and Weaving Mills Co. Ltd., dated August 31, 1934 in which he pointed out that the learned Company Judge had on August 17, 1934 granted time to Messrs. John Brothers to pay the charges, and that Messrs. John Brothers had not paid the charges, and had on August 17, 1934 executed a mortgage in favour of Govind Ram Ram Nath of all their property. No special prayer was contained in this application, but merely a prayer for directions. Messrs. John Brothers filed a reply through their counsel explaining why they had made delay in payment of the charges. The circumstances which gave rise to this matter are as follows: A contract was approved of by the Court on July 21, 1933, by which the liquidator entered into a contract with Messrs. John Brothers for the working of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort would not form the subject of an order in liquidation unless there is some authorisation for such a course of action in the Companies Act. The position of Messrs. John Brothers was merely that of persons who entered into a contract with the liquidator during the course of the liquidation. In the present matter there is no suggestion made that Messrs. John Brothers were in any sense contributories on whose behalf any liability existed which could be enforced by the liquidator. Learned counsel for the respondents took up the position that any transaction made by the liquidator such as for example the sale of cloth in the case of liquidation of a cloth company could result in an order by the learned Company Judge enforcing the conditions of that sale. That is a somewhat extraordinary proposition, and it is not clear why the Companies Act should contemplate such a procedure. Prima facie the Act in regard to liquidation provides a means by which the assets of a company may be realised by the liquidator and claims due from persons in Section 185, contributories etc. may be realised from those persons by order of the court. As regards those matters it is not necessary that the liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 188. Considerable argument has been made in regard to the opening words of Section 188 : The Court may order any contributory, purchaser, or other person from whom money is due to the company. Now these words undoubtedly cause a considerable difficulty in interpretation. A contributory is a clear reference to a contributory as defined in the Act in Section 185, and also as regards liability in Section 185 etc. But what is meant by the word 'purchaser , and what is meant by the words "other persons from whom money is due" ? The word 'purchaser' has appeared in the English Acts dating from the Act of 1862 onwards, and has still continued in the Act of 1929. We think that purchaser does not mean as learned counsel contended any person who had purchased any goods from the liquidator or from the company. If the word 'purchaser' had this meaning of the purchaser of goods, we think that the section would have defined it more precisely. The word does not occur in any portion of the Act. We think that the word purchaser must be taken to refer to the word contributory which immediately precedes it, and that it means the purchaser of the interest of a contributory. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.J., on page 791 remarked : I also think that Hollingsworth's and Cox's cases are conclusive authorities that a constructive trust of this kind is within the 100th Section of the Companies Act of 1862 In the present case I am of the opinion that the order appealed from having been made without jurisdiction, justice requires .. The second time that the matter came before the courts in England was in In re Vimbos Limited. This was a case where debenture-holders had appointed a receiver to realise the assets of the company and there was also a proceeding for the liquidation of the company. The receiver of the debenture-holders received certain assets and made payments to the debenture-holders and retained a certain sum as his remuneration. The liquidator called by summons in the winding up for an order to fix the remuneration of the receiver and claiming that the balance should be paid over to the liquidator. It was held by the Court that this was not a matter in which the Court in liquidation had any jurisdiction. The claim against the receiver was one for which the liquidator must bring a suit. On page 474 the learned Judge stated : It seems to me that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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