9911796707
TMI Blog1956 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 1949, and on 5th September, 1949, obtained an order of attachment before judgment of the furniture etc . belonging to the bank and the same was by the consent of parties kept locked in the banking hall of the premises under the seal of the court. On a petition presented on 30th September,1949, the bank was wound up by an order dated 18th December, 1949, and official liquidators were appointed. On 2nd December, 1949, a decree was passed in favour of the appellant for arrears of rent for the months of July, August and September. After the winding up order the bank carried on no business in the premises. On 15 or 16th September,1949, the attached furniture was sold. Two days later, the official liquidator asked the appellant to take possession of the building. As a portion of the building was in the occupation of third parties, the, land lord refused to take possession of a portion of the building. Thereafter on 30th November, 1950, the appellant by means of an application No. 57 of 1950 under section 171 of the Indian Companies Act prayed for permission to file a suit against the bank for arrears of rent accruing after 30th September, 1949, up to the date of delivery of possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared any such attachment effected without leave of the court to be null and void and that the proper method of executing the decree passed by the former company Judge was to approach the official liquidators and to obtain from them pro rata payment along with other creditors or, if the opposite party claimed preferential payment, to put forward such claim under section 230 of the Companies Act. An argument had been advanced on behalf of the appellant to the effect that the decree in question having been passed by the Company Judge himself was executable under section 199 of the Companies Act and no permission under section 171 of the Act was necessary, and the decree could be executed in the ordinary manner. This plea was rejected by the learned Judge. Against this order the appellant has filed the present special appeal and the points urged by him before us are: Firstly, that the decree in execution being a decree of the company court itself was executable in the same manner as any order or decree of the company court under section 199 of the Indian Companies Act, and that therefore no permission under section 171 of the Companies Act was required for the purpose. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the court as from the date of the order of winding up of the company [section 178(2)] and the official liquidator is directed to take into custody or in his control all such property for the purposes of winding up. It would be very anomalous, therefore, if the property and effects of the company which is being wound up by the court are to be taken away without leave of the court by a claimant who does not come forward to prove his claim in the winding up. The law, therefore, provides that all suits-or legal proceedings shall not be commenced or proceeded with against the company except by leave of the court in which winding up proceedings are pending. Section 171 does, therefore, apply even to the order of the court which is sought to be enforced not by a petition in the winding up but by instituting execution proceedings in some other court. It is immaterial in such cases that the claim or debt which is the subject matter of the suit or other legal proceeding came into existence after the date of winding up. The execution proceedings initiated by the appellant in the Civil Judge's Court, therefore, were void, being in contravention of section 171. It was not disputed before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord should not be made to suffer loss. This rule appears to be based upon the observations of Fry J. in In re Brown Bailey and Dixon: Ex parte Roberts and Wright [1881] 18 Ch D 649 . Said the learned Judge: "In like manner, a lessor is for many purposes an independent person. His rights ought not to be interfered with, more than is necessary, by reason of his lessee having become insolvent, and having chosen to use the Lord Justice's expression) to have a winding up. A mortgagee and a lessor, although in one sense independent persons, are nevertheless creditors of the company in respect of any amount due on the mortgage or on the lease at the date of the winding up, and, as such creditors, they ought, in my judgment, to have neither preference nor priority. In respect of any rights arising after the winding up by reason of the company or the liquidator remaining in possession of the demised or of the mortgaged premises, they ought, in my judgment, to be treated as independent persons, and if the company or the liquidator choose to remain in possession of the demised or mortgaged premises, they must so remain upon the terms and conditions of the instrument, just as any other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Pits Colliery and 163 acres to the landlord. On these facts it was held that they were not sufficient to entitle the landlord either to distrain or to be paid in full. This decision was followed in In re Levy Co. [1919] 1 Ch 416. If I were to apply the principle laid down in the case of Oak Pits Colliery Co. [1882] 21 Ch. D. 322, I would have held that in the present case the liquidator remained in occupation of the premises not for the purposes of winding up but because he could not think of any suitable method of getting rid of the premises in spite of all his desire to do so. It has been noted above that he asked the landlord to take over possession of the premises on 10th September, 1950, but the landlord refused to do that. He was making no use of the premises. Some persons were occupying some portions of the building forcibly. He attempted to dislodge them. In one instance he did ask one of such persons not to pay rent to the landlord after the landlord refused to take over possession from him. But this appears only because he was not sure what the legal position was. In any case the bank had closed its business and the liquidator was not carrying on the business af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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