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TMI Blog1949 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... of this the Universal Rubber Works belonged to the Janda Rubber Works Limited (now in voluntary liquidation), but no deed of sale or document evidencing the transfer of the property from Thomas Janda to Janda Rubber Works Limited has been proved to have been executed or brought to our notice. On 14th January, 1949, so the liquidator alleges and this is stated in the affidavit of the Deputy Custodian also, Mr. and Mrs. Janda made an affidavit in the High Court of Bombay in certain proceedings relating to overdraft account of Universal Rubber Works, Bombay, with the Exchange Bank of India and Africa Limited now in liquidation. Therein it was declared that the Universal Rubber Works was a private property of Mr. and Mrs. Janda and a liability for an overdraft of Rs. 8,00,000 was accepted by them. He is also alleged to have stated in that affidavit that the resolutions mentioned above, dated 31st July, 1945, were never acted upon. On 18th January, 1949, the Bank made transfer entries showing that the Universal Rubber Works was the property of a private partnership. On 17th April, 1949, a resolution for the winding up of the company was passed and subsequently an order for supervis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esiding in Lahore in Pakistan he had declared them to be evacuees under the Act. He further said that if the liquidator had any interest in, or right over, the factory of the Universal Rubber Works his proper remedy was as given in the Bombay Evacuees Act. He challenged the jurisdiction of this Court on the ground of section s 20 and 24 of the Act. As the matter was of some importance, I, with the sanction of my Lord the Chief Justice under rule (1) proviso ( b ) of Chapter 3-B, had the matter placed before a Division Bench. The learned Advocate-General who has appeared for the Collector and Deputy Custodian of evacuee property has taken two objections to the jurisdiction of this Court: (1) he submits that the action taken by the Deputy Custodian was under the Bombay Evacuee (Administration of Property) Act, 1949, and that Act expressly excluded the jurisdiction of the Court to interfere with anything done or action taken under that Act and also that it was impliedly barred because of the Bombay Act and (2) that in this case there is a dispute as to the ownership of the property and under the Indian Companies Act no power is given to this Court to adjudicate upon that dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Custodian .in respect of anything which is in good faith done or intended to be done in pursuance of this Act." I should have added that section 2( b ) of the Bombay Act gives the definition of the word "evacuee". A new Ordinance (No. XXVII of 1949) was passed by the Central Government replacing the various Acts of the Central Government as well as the Acts passed by the Provinces. Section 55(2) and (3) repeals the Bombay Act and it is stated therein that all acts done under the Provincial Acts shall be deemed to be the acts done under the new Ordinance. Sections 24 and 25 in Chapter V relate to appeals. Section 43 of the Ordidance takes away the power of the Civil Court and according to the submission of the learned Advocate-General that includes Courts within the meaning of the Indian Companies Act also. With this submission I agree. The learned Advocate-General also submits that expressly or by necessary intendment the jurisdiction of this court is barred by the provisions of the new Ordinance also and he contends that as the Ordinance gives special remedy for the adjudication of any complaints regarding or claims to evacuee property by implication, at any rate the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined to be right in law the jurisdiction of the Civil Court to entertain the suit is excluded. On the other hand if the assessment is determined to be wrong the jurisdiction of the Civil Court to entertain the suit would arise. In reply to this argument their Lordships said: "Jurisdiction is made to depend not on subject matter but on the correctness of the suitor's contention as respects subject matter. The language of the section is inapt to justify any such capricious method of determining jurisdiction." They went on to say : "In conclusion their Lordships would observe that the scheme of the Act is to set up a particular machinery by the use of which alone total income assessable for income-tax is to be ascertained ..Jurisdiction to question the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The only doubt, indeed, in their Lordships' mind, is whether any express provision was necessary in order to execlude jurisdiction in a Civil Court to set aside or modify an assessment." Now, these are very strong words. In my opinion, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had issued the debentures went into voluntary liquidation which was afterwards continued under supervision. The receiver had taken possession of the property and sold the business for a large sum of money. After paying the debenture-holders some 10,000 were left which were handed over to the liquidator and accounts sent to him and the Receiver retained 1,608 as his remuneration. The liquidator took out summons so that the amount of remuneration payable to the receiver might be fixed and that he might be ordered to pay to the applicant any balance remaining in his hands. It was held that the Court had no jurisdiction to make the order on the summons but the liquidator must bring, an action against the receiver. Cozens-Hardy, J., said : "It is not the law that the liquidator can get any claim made by any agent employed by the company assessed in a pooceeding like this ..It seems to me that the ordinary course of law would have to be followed namely, an action commenced by the liquidator against the alleged agent claiming this money as the money of the company, and then the auctioneer or stockbroker (as an agent) as the case might be, would have to raise his contention tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of carrying out the liquidation, that is the realization of the assets of the company, and payment to the creditors, but he has no jurisdiction to enforce an order against persons other than those mentioned in section 185. Judicial decisions of matters which may arise with third parties owing to transactions entered into by the liquidator are beyond the pale of jurisdiction of the company Judge and no order can be made with regard to these matters. In In re East of England Bank [1865] 1 Eq. 219 it was held that section 165 of the Companies Act, 1862 (Section 235 of the present Indian Act) does not apply as against an executor of a deceased director. In In re Ilkley Hotel Company [1893] 1 QB 248 at page 250 Cave, J., observed : "The functions of the Court are administrative and there is no ground for collecting from the language of the Acts an implied power to decide such a question as this." The question to be decided in that case was whether a county Court Judge could decide a question as to title to property after a petition to wind up a company was presented, the question having arisen before the commencement of the winding up order between the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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