9911796707
TMI Blog1971 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ng-up of the company was filed on May 31, 1963, in the High Court and the court vide its order dated May 31, 1963, directed the winding-up of the respondent-company. Therefore, the winding-up proceedings were transferred by the High Court under section 435 of the Companies Act to the Court of the Additional District Judge, Delhi. The appellant then filed an application before the Additional District Judge under section 446 of the Companies Act for permission to proceed with Suit No. 100/55 in the Court of the Civil Judge, Agra. This petition was opposed by the official liquidator of the respondent-company and it was prayed that the suit filed by the appellant be transferred to the Court of the Additional District Judge, Delhi. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e winding-up court for the commencement or continuation of ; suit against a company in liquidation was section 171 which was in the following terms : "When a winding-up order has been made or a provisional liquidator has been appointed no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose". Section 446 of the Companies Act, 1956, is the corresponding section and sub-section (1) of this section is in the following terms: "When a winding-up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the windi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, explains the scope of sub-sections (1) and (2) of section 446 of the new Act and nothing is said about the scope of sub-section (3). Therefore, this decision will also be of no help. As a matter of fact, my attention has not been drawn by the learned counsel, appearing for either side, to any decision explaining the scope of sub-section (3) of section 446 of the new Act. But, the interpretation of this sub-section, to my mind, presents no difficulty. By this sub-section, a power is vested in the winding-up court to transfer to itself any proceeding by or against the company which is pending in any other court. This power is, no doubt, discretionary, but the discretion has to be exercised judiciously and in the interest of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent-company will not be binding upon the official liquidator. From the reply filed by the official liquidator, it is obvious that he has repudiated the compromise. Therefore, the suit has to proceed to trial. Although the suit was filed in 1955, it would appear that no evidence has been recorded so far. Therefore, the suit is in its initial stages. As regards the inconvenience that may be caused to the appellant by the transfer of the suit, it is pointed out that the official liquidator, who is yet to contest the suit, will be put to considerable expense and inconvenience if the suit is tried at Agra. Apart from the convenience of the parties to the suit, the winding-up court is more concerned with the interests of the company in liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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