9911796707
TMI Blog1989 (2) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... were as under : MTL (machinery) Rs. 2,20,524,77 Cash credit (FT) Rs. 3,52,637.49 Cash credit (bills) account Rs. 6,25,499.68 MTL equity fund assistance Rs. 66,000.00 Defendant No. 4 is a private limited company and is being sued as acceptor of the various bills drawn by defendant No. 1 on it. Although a decree for the full amount in the suit was claimed by the plaintiff against all the defendants, during arguments, learned counsel for the plaintiff, stated that defendant No. 4 is liable only in respect of cash credits (bill) account and the plaintiff does not claim any amount from the said defendant in respect of three other credit facilities, namely, MTL (machinery), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that this court has no jurisdiction to pass any orders on this application or proceed with the suit in view of the winding up of defendant No. 4 company. Defendant No. 4, Integral Marketing Pvt. Ltd., was ordered to be wound up on September 16, 1988, in Company Petition No. 58 of 1985 intituled Sh. Deepak K. Singh v. Integral Marketing P. Ltd. About winding up of defendant No. 4, there is no dispute. The question is as to its effect on these proceedings. Section 446(1) and (3) of the Companies Act, 1956, on which reliance has been placed read as under : "446. Suits stayed on winding up order. (1) When a winding up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any relief against defendant No. 4 in this application. Learned counsel for the parties have not cited any direct judgment taking a view one way or the other on the question of the effect of an order of winding up being made in respect of one of the defendants. I have to decide the question on the plain language of the section and general principles. Learned counsel for the defendants has, however, placed reliance on section 446(3) of the Companies Act, in support of the contention that the entire suit is liable to be transferred to the company court. Counsel submits that it will neither be possible nor feasible to split the claims in the suit and transfer part of the suit to the company court while not transferring the suit against ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shall not be proceeded with against other defendants also ? My answer is "No". The reasons are many. Fristly, section 446 is applicable only to the companies under the Act and other defendants before me are not companies but are different and distinct legal entities. Secondly, had the Legislature intended that no suit or legal proceedings to which the company is a party shall proceed even against others after winding up order in respect of the company is made, it would have said so expressly and would not have said that "...No suit or other legal proceedings shall...be proceeded with against the company, except by leave of the court...". Thirdly, the liability of the other defendants may be independent, separate and distinct from that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out other modalities of sale including the period during which the offers could be given and goods could be inspected by the prospective buyers. The prospective buyers will be required to desposit with the receiver 10 per cent, of the amount of offer by bank draft to be drawn in the name of the Registrar of this court. Learned receiver shall file his report within two months giving details of all the offers. The offers will be subject to confirmation by the court. The plaintiff will bear all expenses for sale and give its full assistance and cooperation to the receiver. The fee of the receiver is tentatively fixed at Rs, 5,000 which will be paid by the plaintiff. I. A. No. 6732 of 1988 is allowed in the above terms leaving the parties to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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