9911796707
TMI Blog1973 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... or. The plaintiff claims in this suit a decree against the said company for a sum of Rs. 15,43,437.79, interest at the agreed rate and declaration that all plant and machinery, goods and movable assets mentioned in part I and their book debts and bills mentioned in part II of annexure "E" of the plaint are charged and hypothecated in favour of the plaintiff-bank and certain other incidental relief's. As mentioned hereinbefore, this is an application for appointment of receiver and sale of these goods. There are several defendants to whom reference need not be made except the added defendant, viz., defendant No. 17, being National Iron and Steel Co. who claims to be the owner of the leasehold property in which the plant and machinery, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) and 446 of the Companies Act, 1956, for the proposition that the official liquidator was a public officer and the property of the company being in his custody as custodian and the suit being in respect of that property this is in respect of the acts done by him in his official capacity. It was further submitted that even in respect of future acts notice under section 80 of the Code of Civil Procedure was necessary and reliance was placed on the decision in the case of Union of India v. Baijnath Sarda AIR 1971 Cal 56 . In support of that proposition, counsel for respondent No. 17 drew my attention to several decisions to which I shall briefly refer. It, however, appears to me that the official liquidator can legitimately be describe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Civil Procedure and was protected by section 80 of the Code of Civil Procedure against any plaintiff who filed the suit against him with regard to acts done by him as receiver without giving requisite notice. With respect, it appears to me the Division Bench of the Bombay High Court had no occasion to consider the nature of the suit filed against companies in liquidation. It is true that when a winding-up order is made the property goes into the hands of the liquidator but the identity of the company remains unless the name of the company is struck off. Even after liquidation proceedings the company exists in a separate and independent character. Therefore, in a suit in respect of property of such a company which in view of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public officer as defined in the Civil Procedure Code. Hence, in a case where in execution of an award issued by the Registrar of Co-operative Societies the liquidator had attached a house and an objection to the attachment was brought by a person on the ground that the house belonged to him and the application was dismissed and a suit was brought, the liquidator was entitled to a notice under section 80 of the Code of Civil Procedure. The facts in that case were, however, materially different from the facts of the instant case. Section 446 of the Companies Act and rule 118 of the Companies (Court) Rules provide that the suit will be against the company in liquidation but represented through the liquidator. So, in essence, the cause of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory application, no question of appointment of receiver arises. One more point has to be dealt with, namely, that it is alleged that the receiver had been appointed in an application by the Bank of India on more or less identical allegations and identical facts and indeed the petitioner's claim for appointment of receiver is based on that allegation. It appears to me that the case of the Bank of India suit was on entirely different basis and facts are entirely different. Therefore, the fact that there was appointment of receiver in the case of the Bank of India suit is no ground for the appointment of receiver in the instant case. Having regard to the nature of the averments made in this case, in my opinion, the petitioner is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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