9911796707
TMI Blog1968 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... cising its jurisdiction under section 221 of the Indian Companies Act, 1913(hereinafter referred to as the Act) wound up the company in accordance therewith by exercising supervision over the voluntary winding up, which was by then sought by the members of the company and which was continuing. This order of court was made on April 1,1959. The applicants stated that during November 11, 1952 ard June 5,1956, the respondent, as voluntary liquidator, drew moneys belonging to the company twice over, in the sense that he once drew such allowances as a member of the then Madras Legislative Assembly and at another time as the voluntary liquidator of the company in liquidation and appropriated both the amounts for the same journey or journeys and therefore the respondent is guilty of misapplication of the funds of the company. The applicants also state that in a counter affidavit, marked as exhibit A, in these proceedings, filed in Application No. 909 of 1957, the respondent has categorically admitted that he has incurred expenses for and on behalf of the company and recouped himself of such expenses from the funds belonging to the company. In fact, the respondent would state that the trave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate his argument thus. In section 235 the expression used while delimiting the period of limitation, is "within three years from the date of the first appointment of a liquidator in the winding up". While emphasising the article the in the parenthesis excerpted above, the learned counsel states that the "winding up" referred to should have reference to the final order made by this court under section 221, when it assumed supervision over the voluntary liquidator in the course of voluntary winding up and it cannot have any reference to the liquidator voluntarily appointed at the general meeting of the company in the course of its voluntary winding up. Thus he would say that his application is within time. Incidentally, he referred to the decision of our court in Parandhamiah v . Narasimha Rao [1950] 20 Comp. Cas. 1 , in support of his contention that three distinct and separate modes of winding up of companies are provided for and contemplated in the Act and in the light of such an express provision like section 155 of the Act, it is but necessary that an order of court under each and every of such modes prescribed therein should be treated separately and dealt with accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, (2) voluntary and (3) subject to the supervision of the court. It is not seriously disputed that these three modes of winding up are distinct and separate. It cannot also, equally, be disputed that a company in liquidation, although the administration has passed on to the liquidator, retains its existence, section 221 of the Act enables the court to wind up a company, already voluntarily wound up by a special or extraordinary resolution of the company, by exercising its supervision thereon. But section 221 expressly recites that the court may make an order '' that the voluntary winding up shall continue, but subject to such supervision of the court, as it may deem fit". Thus, the continuance of the winding up voluntarily imposed by its members is preserved. By such an express preservation it is but proper to conclude that the first liquidator appointed in the course of the winding up of a company voluntarily does continue, notwithstanding the supervision that is sought to be exercised by the court under section 221. Section 235 begins by saying: - "Where, in the course of winding up a company......the court may, on the application of the liquidator, or of any creditor or contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me into play. Can it be said that the company was not being wound up when a voluntary liquidator has been appointed? Can it be equally said that by a supervening order under section 221 the court appointed the liquidator for the first time? Both the questions posed by me have to be necessarily answered by me in the negative. It therefore follows that prior to April 1 1959, the company was indeed being liquidated but by one of the accredited processes of winding up prescribed in section 155 of the Act, namely, voluntary winding up. Therefore, it cannot be disputed that there was a liquidator who was functioning at a time prior to the date when the court exercised jurisdiction under section 221. I am unable to be persuaded that the order of this court under section 221 appointing the respondent as the liquidator under its supervision should be considered as the first appointment of a liquidator in the winding up of this company. The next contention of Sri Manickavasagam is that the averments in Application No. 909 of 1957 read with those in Application No. 595 of 1957, would throw abundant light upon his contention that this application is maintainable. No doubt there is reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
