9911796707
TMI Blog1976 (1) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated that the declaration of insolvency was made after the meeting and is, therefore, ineffective. The applicant wants the liquidation to be set aside although it has been proceeding under the supervision of the court since 15th April, 1969, as per orders passed in C.P. No. 1/1969. Without going into the merits of the case and the reply filed by the voluntary liquidator, the question arises whether this petition is maintainable under section 446 of the Companies Act, 1956. I find from the orders passed on record that this application has not been admitted, but the respondent was asked to file a reply. This happened because these proceedings were somehow filed along with C.A. No. 269/1973 before Shankar J. (as he then was). It was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company; whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960." This provision shows that the court's jurisdiction arises concurrently with other courts in respect of suits or proceedings by or against the company. The present proceeding is not a proceeding by or against the company. It is a proceeding wherein the petitioner is seeking to have the winding up of the company declared invalid. The opening words of the section show that the provisions of section 446 are only available to the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on 15th April, 1969, in C.P. No. 1/1969, and a considerable period has passed since then. Ever since then, the court has been supervising the winding up of this company. If the petitioner is right, then there was no winding up and there was no liquidator and there could not have been a supervision order and consequently, this court would have no jurisdiction under section 446(2) because the starting point of the jurisdiction is the existence of a winding-up proceeding. If there is no winding up, this court has no jurisdiction. This court is not entitled, in exercise of powers under section 446(2) while winding up a company, to say that there is no winding up, because, as I read the section, it requires that there must be a winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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