9911796707
TMI Blog1993 (8) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank through its branch situate in sector 22-D, Chandigarh (referred to hereinafter as "the bank"). Respondents Nos. 2 and 3 who are the ex-directors of the company along with respondent No. 4 had stood guarantee for the loan advanced to the company and respondent No. 3 mortgaged her immovable property as collateral security by creating an equitable mortgage in favour of the bank. A sum of Rs. 46,95,555.33 together with future interest at the rate of 25.25 per annum till the date of payment is said to be due from the company. The bank has filed the present suit in this court for the recovery of the aforesaid amount from the company. Respondents Nos. 2 to 4 have also been impleaded therein. A prayer has also been made for the passing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt fee of Rs. 13 only is payable as provided in article 1( d )( ii ) of Schedule II to the Court Fees Act, 1870. As regards the institution of the suit in this court against the guarantors, counsel for the petitioner submits that under Order 1, rule 6 of the Code of Civil Procedure, the petitioner can at his option join as parties to the same suit all or any of the persons jointly and severally liable on any one contract and, therefore, the guarantors have rightly been impleaded and this court would have the jurisdiction to entertain the suit against them as well. From the rival contentions of the parties, the following two questions arise for consideration: ( i )Whether a suit would lie in this court against persons other than the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company in liquidation which generally cannot meet heavy expenditure of litigation. When a winding up order has been made, all properties and effects of the company are deemed to be in the custody of the court as from the date of the winding up order and the official liquidator has the statutory duty to conduct the proceedings in the winding up of the company to realise its assets and to distribute the same to the creditors. It is for this reason that with the sanction of the court he has power to institute or defend any suit, prosecution or other legal proceedings in the name and on behalf of the company. He may also apply to the court for any direction in relation to any particular matter arising out of the winding up. If in the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as already observed earlier, acts in the discharge of his statutory duty when he filed a claim petition to recover money from the debtor but a creditor's suit to recover money from the company cannot be equated with that of the liquidator's claim against a debtor. Thus, a creditor has to institute a regular suit and unless ad valorem court fee is paid thereon, the same cannot be entertained. The plaint even though described as a petition under section 446 of the Act cannot be held to be a petition under the Act "for taking some other judicial action" within the meaning of article 1( d )( ii ) of Schedule II to the Court Fees Act, 1870, so as to permit the petitioner to pay a fixed court fee of Rs. 13 as has been done in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960." A plain reading of the aforesaid provisions makes it clear that when a winding up order has been made no suit can be instituted or if pending at the date of winding up order can proceed against the company except by leave of the court and subject to such terms as the court may impose. Leave, according to sub-section (1), has to be obtained for instituting or proceeding with a suit against the company but no leave is necessary if a suit is to be instituted against persons other than the company in liquidation. Under sub-section (2) of section 446, the court which is winding up the company has, notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d result not only in multiplicity of suits but could even lead to contradictory decisions. In the result, I hold that the present suit is maintainable against the guarantors as well who, according to the averments in the plaint, are jointly and severally liable under the same contract. While upholding the objection raised on behalf of the official liquidator and rejecting the one raised on behalf of the guarantors, I grant leave to the bank to institute and proceed with the present suit in this court against the company as well as respondents Nos. 2 to 4 who are allegedly the guarantors, provided that the bank makes up the deficiency in court fee within a period of four weeks from today failing which the application for leave will be deem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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