9911796707
TMI Blog1961 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... Sukh Sancharak Company (Private) Limited. The various appellants in the three aforementioned appeals were members of a single family, for the company was a private limited liability company. The company had in all 3,000 shares and these 3,000 shares were taken by the three brothers, Vishwa Pal Sharma, Shakti Pal Sharma and Brijendra Pal Sharma, It appears that the relations between the brothers were anything but cordial with the result that disputes arose between them. As a result of the disputes on May, 9, 1949, Brijendra Pal Sharma filed an application for the winding up of the private limited company bearing the name of Sukh Sancharak Company (Private) Limited. On the filing of the application it appears, a prayer for the appointment of an official liquidator was made. On May 10,1949, Sri I. B. Banerji was appointed provisional liquidator. The actual winding up order was made on May 14, 1952, and the provisional liquidator was appointed official liquidator by an order dated May 27, 1952. The official liquidator happened to be also Sri I. B. Banerji, so that for the purposes of this case the provisional liquidator became the official liquidator in the case. An appeal was prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of Vishwa Pal Sharma by shortly stating that learned counsel appearing for him was unable to place before us any material on which the contention of Vishwa Pal Sharma that he was entitled to Rs. 350 as salary and 2½ per cent, of the profits as commission could be legitimately held to be valid. The learned single judge found that there was no evidence on the record to show that Vishwa Pal Sharma did not get the salary to which he was entitled or that he did not get any commission to which he was entitled, with the result that the claim of Vishwa Pal Sharma in regard to these two matters was rejected by the learned company judge, and we have seen no reason on the materials on record to take a view different from that taken by the learned company judge. Vishwa Pal Sharma and Brijendra Pal Sharma made their mainstay in the appeal on the question of limitation, although the question of limitation was also raised by Srimati Subhadra Devi and her two sons in Appeal No. 22 of 1960 but in her case she had other shots in her locker to attack the judgment of the learned company judge with. The question of limitation that arose was this: under section 235 of the Indian Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up. Mr. Gyanendra Kumar on behalf of his clients contended that by virtue of section 168 the winding up of a company would be deemed to relate back to the date of the presentation of the petition. We have no quarrel with this proposition of Mr. Gyanendra Kumar; we are not concerned with determining the points of time from which the winding up is to be deemed to commence; we are concerned with knowing when a liquidator "in the winding up" comes into existence. In our judgment, the words "in the winding up" in section 235(1) must relate to a point of time subsequent to the making of the order of winding up, although it may be that the appointment order is contained in the same order by which the winding up is made. The first appointment of a liquidator referred to in section 235(1) cannot, in our judgment, refer to the appointment of a provisional liquidator made under subsection (2) of section 175. Apart from the reasons which we have indicated above, there are other good reasons for coming to this conclusion. If we were to hold that the first appointment referred to in section 235(1) could refer to the appointment of a provisional liquidator, then we would be faced with the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidator against Smt. Subhadra Devi and her sons, was what was the capacity in which she purported to take away the moneys. It was contended by the liquidator that she purported to take away the moneys as a director; indeed, his case was that she was a director. The finding of the learned company judge is that Smt. Subhadra Devi was not a director for she had never been elected as such. Further, there is nothing in the decision of the learned single judge or on the record, to which our attention could be drawn, on which it can be said that when Smt. Subhadra Devi took any of the sums of money for which she is being made liable, she acted as a director or as any of the persons mentioned in section 235(1) who could be proceeded against under that section. It appears that the company which was a private company was looked upon as a family affair and that Smt. Subhadra Devi may have in the capacity of a member of the family, as a widow of the deceased brother, who contributed to at least one-third of the assets, took away certain sums of money. Smt. Subhadra Devi may have acted illegally or without any justification but that alone did not confer jurisdiction on the official liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
