TMI Blog1964 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... llusively with the object of defeating creditors of the Alwaye Textiles Ltd. and that the same were not valid or binding on the company; ( ii ) that the decree and execution proceedings in O.S. No. 278 of 1950 be set aside and that the first plaintiff be permitted to recover possession of the properties in the schedule appended to the plaint; and ( iii ) for an injunction restraining defendants Nos. 1, 4 and 5 from alienating or encumbering the properties in schedule A and the movables therein. Originally there were three plaintiffs. The first plaintiff was the official liquidator of the Alwaye Textiles Limited. The second plaintiff was a creditor of the company, and the third plaintiff, a shareholder. The second plaintiff was removed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as he was entitled to appeal against the same. We may add that no court-fee was paid in the appeal on the costs decreed as required by the rules. The first point to be considered is whether there is an appeal by and in the name of the company. The Alwaye Textiles Limited is a corporation entitled to sue and be sued in its name. In fact the company was the first plaintiff in the suit, the description of the first plaintiff being "the Alwaye Textiles by R. Padmanabha Pillai, Official Liquidator". The Alwaye Textiles Limited does not however figure as a party to the appeal. A company in liquidation retains its corporate powers including the powers to sue and such powers are exercised by the liquidator who has to sue in the nine of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts. However, we may mention that the same has been laid down in Vaidyanatha Aiyar v, Indian Bank Ltd. [1955] 25 Comp. Cas. 161 . Section 178 (1) of the Indian Companies Act, 1913 (reference is made to the old Act as the winding-up proceedings were under that Act), which provides: " The official liquidator, whether appointed provisionally or not, shall take into his custody, or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled.'' By sub-section (2) all the property and effects of the company have to be deemed to be in the custody of the court as from the date of the order for the winding up of the company. The powers of the official liquidator are enumerated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been following the practice of the Chancery Court which is summarised in Halsbury's Laws of England as follows: "Any of the parties to an action or matter and any person served with notice of the judgment or order may appeal (by leave, where leave is necessary). A person who is not a party and who has not been served with such notice cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal (volume XXX, page 461)." Based on these decisions it is argued that the appellant is entitled to prefer the appeal. We may in this connection refer to a few facts preceding the institution of the suit. On October 7, 1955, plaintiffs Nos. 2 and 3 filed an application before the official liquidator. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in paragraph 1 of the plaint that the assets of the company are with the official liquidator as per the order in Company Petition No. 1 of 1953 and that he is suing on behalf of the company with the sanction of the court. Paragraph 2 states that the second plaintiff is a creditor of the company to whom amounts are due on account of rent of a building taken by the company for which he has obtained a decree and the third plaintiff is described as a shareholder of the company. It is not stated in the plaint that plaintiffs Nos. 2 and 3 are suing on behalf of the company ; on the other hand, their presence is attributed to their status as creditor and shareholder respectively. After the suit was dismissed by the trial court the third plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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