9911796707
TMI Blog1991 (10) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... e judge dated December 12, 1986, dismissing the petition filed by the company under sections 446, 512, 518, 526, 528 and 529 of the Companies Act, 1956, read with rules 9 and 168 of the Companies (Court) Rules, 1959, wherein a prayer was made for deleting the name of United Commercial Bank (hereinafter to be called as "the bank") from the list of creditors submitted by the directors. The relevant facts for determination of the question raised in the appeal are few and broadly admitted. The company voluntarily went into liquidation. The directors submitted a list of creditors to the liquidator. The United Commercial Bank was one of the creditors shown in the list. Notices were issued to the bank by the liquidator to satisfy him about the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead evidence and thus the case was adjourned for arguments. In view of the statements of counsel for the parties referred to at the stage of framing the issues as aforesaid, now counsel for the appellant cannot make a grouse that no evidence was allowed to be led by the single judge in the issue framed either to the appellant or to the respondent. In the petition filed by the company, it was specifically stated that there was an ex parte decree in favour of the bank. This fact stands admitted in the written statement filed by the bank. The fact which is admitted is not required to be proved by producing evidence. The learned single judge rightly pointed out in the impugned order that the factum of passing of the ex parte decree in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy could not be availed of by the secured creditor." In para 21 (of AIR 1955 SC 604) of the judgment it was observed as under (at page 354 of 25 Comp Cas) : "The words 'any sale held without leave of the court of any of the properties' inserted in section 232(1) by Act 22 of 1936 refer only to sales held through the intervention of the court and not to sales effected by the secured creditor outside the winding up and without the intervention of the court. Hence such a sale is valid and binding on all the parties concerned." The aforesaid case dealt with by the Supreme Court was under the old Companies Act. In 1956, Parliament enacted the Companies Act No. 1 of 1956. The ratio of the decision of the Supreme Court would continue to ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is contemplated. The passing of a resolution for a voluntary winding up does not, like an order for winding up by or under the supervision of the court, stay any proceeding or prevent suits or proceedings being brought or continued against the company without the leave of the court. But, on an application being made under section 518, the court has jurisdiction to stay any action, proceeding, attachment, etc., against the company or its assets. Until a stay is obtained any proceeding against the company may be commenced or proceeded with. Counsel for the parties have also relied upon section 446 of the Act. Section 446(1) of the Act reads as under : "When a winding up order has been made or the official liquidator has been appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,1975, in C.P. No. 169 of 1974 (information supplied by counsel for the appellant). The ex parte decree dated July 30, 1974, in the present case was passed prior to the aforesaid date of appointment of provisional liquidator though a petition for winding up was already pending. The other question for consideration is as to whether the liquidator had the authority to declare a decree passed by civil court as void and thus ignore the decree-holder from the list of creditors. Learned counsel for the appellant, in support of his contention, argued that the official liquidator was competent to declare a decree as void, if obtained under some circumstances to cast a doubt and has relied upon a decision of the Allahabad High Court in Union I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on admission, we are of the opinion that a judgment and decree passed by a civil court would be binding on the parties whether obtained after a contest or otherwise, i.e., ex parte till the same is set aside either on appeal or in proceedings for setting aside the ex parte decree. Such judgment and decree in favour of the creditor would be prima facie proof of the debt due and the nature of the debt and as to whether such a creditor-decree-holder would be a secured creditor or not. The copy of the ex parte decree shows that a decree for recovery of Rs.9,65,985.97 was passed in favour of the bank and against the company with the further direction to recover the decretal amount by the sale of the mortgaged property and the hypoth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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