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TMI Blog1965 (8) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... o be the creditors of the company and the winding up was sought on four grounds: (1)The company was unable to pay its debts; (2)It had suspended business for more than a year; (3)The name of the company had been struck off the register by the Registrar of Companies on 23rd July, 1952, and the company had been dissolved under section 247 of the Indian Companies Act, 1913; and (4)It was just and equitable to wind up the company. The company having been dissolved the petition was resisted by one Sat Narain Goenka. He took a preliminary objection that since the company had been dissolved in 1952 no order could be passed for the winding up of the company. The learned District Judge framed two issues which were as under: (1)Is the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuation of the original proceedings and, taking account of the change in law, it should be held that the jurisdiction of the court to wind up the company in such circumstances is unaffected. He has further invited my attention to section 645 of the Companies Act, 1956, and says that the order of the Registrar striking off the company passed in July, 1952, should be deemed to have been passed under the new Act. Lastly, Mr. Sawhney submits that even under the 1913 Act the position was the same and proviso ( b ) to subsection (5) of section 560 merely clarifies the position that obtained under the 1913 Act. In reply to the first submission of Mr. Sawhney, Mr. Misra, the learned counsel for the respondents, says that reference to sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature. Mr. Misra says that the proviso to section 647 is destructive of the argument, that applicability of section 647 is confined only to the winding up of the affairs of a company which has already been ordered to be wound up or where in the case of a voluntary winding up a resolution for the purpose has already been passed. I find no such justification from the language of the proviso. As a matter of fact; reference to the four sections mentioned in the proviso would further support rather than destroy the arguments of Mr. Sawhney. Sections 463, 515 and 524 undoubtedly relate to the actual winding up of the affairs of the company and not passing of the winding-up order or the resolution, therefor. Some doubt may, however, arise as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of winding up by court it is only when a winding-up order is passed that it dates back to the date of petition. When section 647 says "where the winding up of a company has commenced before the commencement of this Act", it must mean that both the order and petition for winding up are of a date prior to the commencement of the 1956 Act. My conclusion, therefore, is that the section will apply only to the winding up of the affairs of the company. So far as section 6 of the General Clauses Act is concerned, no doubt the repeat cannot affect, unless a different intention appears, any investigation, legal proceedings or remedy in respect of any right, privilege, obligation, liability; penalty, forfeiture or punishment, but in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht that procedure to be more convenient, but in India even the question of advisability of such a course does not arise because in the Indian Act there are no provisions corresponding to section 354 expressly declaring the property of a dissolved company to be bona vacantia. That, to my mind, does not make any difference. Although such a provision does not exist in the Companies Act, 1956, the principle of bona vacantia would be as much applicable in India as in England. Since I have held in favour of the appellants on the first point, it is not necessary to carry the matter further. May be that the effect of a winding-up order itself is to vest the custody of the company's property in court and divest the State of the same. I must also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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