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TMI Blog1968 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 as one of the sections applicable to a members' voluntary winding-up, the attempt is given up, it being conceded that section 446 is irrelevant in the context. Indeed, occurring as it does under the Companies Act, Part VII, Chapter II, captioned "Winding-up by court", it can, without more, do no duty here : a case of voluntary winding-up, provided for by Chapter III, ibid. Equally barren appears to be reference to rules 241 and 256 in Appendix 7 to the Court's Original Side Rules, volume II. Rule 241, which is more or less a rehash of section 446, sub-sections (2) and (3), provides for, inter alia , assignment of suits and proceedings, that pend, to the company court, "upon the making of an order by the High Court for the winding-up of a company by or under the supervision of the court". The winding-up on hand does not come under either. By parity of reasoning, rule 256 remains idle here. No application has yet been made, for all I am told, to the company court. Section 518, sub-section (1), clause ( b ), no doubt, enables the liquidator to apply to the court, to exercise, as respects the enforcing of calls, the staying of proceedings or any other matter, all or any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h such company must be made to know that its liquidation is on. I am unable to translate this principle to the facts which have led to the present application for amendment of the plaint filed on July 10, 1956, a little less than two years ahead of the voluntary winding-up of the plaintiff company on June 26, 1958. Then, section 547 is a penal provision, within the clear language of which you must bring yourself, if you want to call it in aid. But an application for amendment cannot be regarded as falling under any one of the three classes of documents it specifies : ( i ) invoice, ( ii ) order for goods, or ( iii ) business letters. If, by an acrobatic feat of the mind, it can be so regarded, what the application for amendment seeks to do is to secure compliance with this section. Therefore, neither section 547 nor the rules of the Companies (Court) Rules, 1959, I have been referred to, can stand between the plaintiff-company and the amendment it asks for. This exhausts all the contentions addressed to me, on behalf of the defendant, in order to negate my jurisdiction to deal with the application for amendment. And I find each such contention to be destitute of merit. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 512 and 457, the power of a liquidator, in a members' voluntary winding-up, with the sanction of a special resolution of the company, is the power, with the sanction of the court, "to institute a suit" an expression which does not mean continuance of a suit as well. Re-verification asked for, of the amended plaint, so much emphasized on behalf of the defendant, cannot set the hands of the clock back, by converting the continuation of a suit from June 26, 1958, into institution of the suit, which was here instituted, in fact and at law, on July 10, 1956. There is perhaps another way of looking at the matter. Parliament has not been oblivious of pending suits (as the one before me is) at the date of the winding-up order by the court. To section 446 again, but to its sub-section (3). By virture thereof, all such pending suits have got to be transferred to, and disposed of, by the company court. But section 512 does not incorporate section 446. It incorporates part of section 457 only. The suit I am seized of is a suit by the company. So, because of incorporation of part of section 457 by section 512, the only power the liquidator of a company, voluntarily wound-up by its membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... winding-up. But the petition for amendment of the plaint is over the signature of only one, Choksey, for self and co-liquidators. This, it is said, infracts section 512, sub-section (4), by virtue of which the petition for amendment is to be signed by at least two of the five liquidators. But, to say so is to misread and misapply sub-section (4) of section 512, the ingredients of which are (1)Appointment of several liquidators. (2)Determination at the time of their appointment about any power given by the Companies Act to be exercised by such one or more of the liquidators so appointed. (3)In default of such determination, the exercise of such power by any number of them not being less than two. The first ingredient is well met here. Appointment of several liquidators, five in all, is there to be seen. One of them, Hill, has since died. So is the second ingredient. At the time of the appointment of so many liquidators, it is determined that they are appointed so jointly and severally for the purposes of such winding-up. So, any power given by the Companies Act may be exercised by all of them jointly or any one of them separately, that is, individually. If the making of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the company, whereupon it was held that such acceptance, not by at least two, but by one, having no legal sanction behind his authority, was not binding on the shareholders. Say this of Choksey ? All he has been authorized to do is to sign the petition for amendment on behalf of all liquidators who are acting as such : just what liquidator Sen says in his affidavit in reply. So, this decision cannot be assimilated to the case in hand. The other decision is In re London and Mediterranean Bank ; Ex parte Birmingham Co. [1868] 3Ch. App. 651. There it is reiterated that, according to the Companies Act, 1862, liquidators, when they are in plural number, cannot perform any act except there be two at least engaged in the performance of that act, in absence of authority from the company when appointing them, to perform it through the medium of one liquidator. At the same time it is laid down that the authority of the two does not necessarily mean that you should find the names of the two liquidators on the piece of paper concerned (there the bill of exchange and here the petition for amendment). What counts is having the benefit of the judgment of the liquidators upon the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation could make no difference in this regard: the claim of the plaintiffs was a claim against the bank, and not against the liquidators. The change which was brought about by the liquidation in regard to the suit was merely this, that in the conduct of their defence the bank would, before liquidation, act through the directors, during liquidation through the liquidators, and after the termination of the liquidation through the directors once more". Just so here, save that the claim is by the company ; in the conduct of the suit the company was, before liquidation, acting through its directors, and would now act, during liquidation, through the liquidators. That is all. Why amendment then, I ask again. An amendment is called for, when a change in the contents of the pleading is called for not when a change of the agency, in the conduct either Of the suit or of the defence takes place, the suit itself undergoing no change, but remaining what it was. I may, therefore, reject the amendment prayed for, without any party being any the worse or better for it. But I need not do so, since it is a routine procedural matter and assists the convenience of all in getting to know from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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