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TMI Blog1961 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... achar, lists of contributories were settled on 20th/22nd May, 1959 by the voluntary liquidators (vide annexures " A", "A-1", " A-2 " and "A-3"). On 13th October, 1959, a call was made by the voluntary liquidators of Rs. 1.50 per share out of Rs. 5 unpaid on each share and the contributories were required to make the payment by 31st October, 1959. Annexure "C" is a specimen of the notice making calls. It may be stated here that on 28th February, 1947, before the company went into liquidation, the directors had made a call on the shareholders of Rs. 2 per share. Some of the contributories had not paid this call also, and it was mentioned in C.O. 16 of 1960 that the voluntary liquidators would make a fresh call in respect thereof. It was stated that the voluntary liquidators required about Rs. 16,553.64 as per details given in annexure "D". In C.O. 28/1960 it was prayed that in accordance with the provisions of section 470(1)( b ), read with section 518(1)( b ) of the Companies Act, 1956, payment orders be passed against the contributories mentioned in the list attached as annexure "A" for the amount shown against each contributory (calls by liquidators with future interest at 6.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by one liquidator only, whereas there are two liquidators ? (4)Whether the list of contributories was drawn up in accordance with the procedure laid down in the rules and the Act ? (5)Whether the several claims against the company, as refer red to in annexure "D " of the petition, are admissible, and if so, to what extent? (6)Whether the call of Rs. 1.50 per share is justified in the circumstances of the case ? (7)Whether respondents Nos. 2 and 9 are shareholders of the company ? It appears that by inadvertence issue No. 7 in CO. 28 of 1960 was framed in identical language as issue No. 6 in CO. 16 of 1960. In CO. 28 of 1960, in seventh issue, the figure of Rs. 2.00 should be read instead of Rs. 1.50 being substituted therefor. The first three issues in both the petitions were of a preliminary nature and at the request of the parties evidence was recorded on the preliminary issues only and arguments have been heard. The preliminary issues are common to both the petitions. Mr. A.M. Suri, counsel for the petitioner, examined Shri Jai Krishan Suri, P.W. 1, and Shri Harnam Dass, P.W. 2. Both these witnesses are voluntary liquidators. The respondents did not produce any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibit P. 11) P.W. 1 did not convene any meeting of the shareholders of the company or of the directors for permission to start business of the company. P.W. 2 is Harnam Dass, the second voluntary liquidator, who merely stated that the two petitions, CO. 16 and CO. 28 of 1960, had been filed under a power of attorney signed by him and that be was a party to the filing of the applications. Arguments were addressed by Messrs. D.R. Nanda, B.R. Tuli and K.N. Tiwari on behalf of their respective clients who had opposed the petition. The first argument is that in the absence of any resolution by the company or by its directors authorising the making of an application under section 43 of Act 70 of 1951, the recognition given by the Registrar was bad in law. It was said that no meeting as admitted by Jai Krishan Suri in his statement had been called, and the recognition had been sought as a unilateral act of an individual which was not the act of the company. A number of authorities were also cited in support of the proposition that the holding of a meeting and passing a resolution is imperative before an act can be said to be on behalf of the company. On the other hand, it is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon, notwithstanding anything to the contrary contained in any law for the time being in force or in any instrument, the society or the company, as the case may be, shall be deemed to have been formed and registered under the relevant law as in force in India, and every such society or company shall, among other matters, have the right to demand and receive any moneys due, to it from any person residing or carrying on business in India. " In this case, the Registrar, after making an enquiry into the matter, had accorded the recognition. An appeal lay from the order of the Registrar to the State Government but had not been preferred. It is clearly provided that no order passed by the Registrar or by the State Government on appeal shall be called in question in any court. This language leaves no room for doubt and does not allow the reopening of the matter. The Registrar having accorded the recognition which has not been upset in appeal, effect must now be given to sub-section (4) notwithstanding anything to the contrary contained in any law for the time being in force. The result, therefore, is that the company "shall be deemed to have been formed and registered under the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company suffered from an illegality. It was indicated in exhibit P-g, when the meeting was called, that proxies should reach within 72 hours though according to regulation 61 of Table A the instrument appointing a proxy had to be deposited at the registered office of the company not less than 48 hours before the time for holding the meeting. The respondents' learned counsel, however, could not say if any person bad suffered because of exclusion, that is, whose proxy had been filed before 48 hours but not before 72 hours of the holding of the meeting. Exhibit P-9 is a notice dated 15th January, 1958, relating to the calling of the meeting for 8th February, 1958. The next objection is that the present petition is not maintainable in view of section 512, sub-section ( i )( a ) on the ground that the voluntary liquidator had not obtained sanction of this court under section 457, but sub-section ( i )( c ) and ( d ) of section 512 provides that the liquidator may exercise the power of the court under the Companies Act of settling a list of contributories and also exercise the power of the court of making calls. The contention of the learned counsel for the respondents is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in arrears and that a notice was sent under registered cover and a specimen of the notice had been attached as annexure "B" with the petition. This call was made on 10th March, 1960, and was payable up to 31st March, 1960. If the call relating to C.O. 28 of 1960 were not to be treated as a fresh call to one made in February, 1947, the contention of the respondents that it is time barred would prevail, but not otherwise. After the winding up, the liability to pay the call is ex lege and not ex contractu. After the winding up of the company, the obligation to make the payment is statutory and not contractual: (vide Mahomed Akbar Abdulla Fazalbhoy v. Associated Banking Corporation of India Ltd., [1950] 20 Comp. Cas. 325 , Hansraj Gupta v. N.P. Asthana [1932] 2 Comp. Cas. 548 and Prayan Prasad v. Gaya Bank and Trades Association Ltd. [1931] 1 Comp. Cas. 85. Reference may also be made to Jagannath Prasad v. U.P, Flour Oil Mills Co. Ltd. [1916] ILR 38 All. 347, A, Vaidiswara Ayyar v. Siva Subramania Mudaliar [1908] ILR 31 Mad. 66, Sorabji Jamsetji v. Ishwardas Jagjiwandas Store [1895] ILR 20 Bom. 654 and In re Whitehouse Co. [1878] 9 Ch. D. 595, 599, 600. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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