9911796707
TMI Blog1996 (12) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... l by the end of the day. The petitioner challenges the order dated June 3, 1985, made by the civil court, Gandevi, as the authority under the Payment of Wages Act, 1936, directing the petitioner-company that: "In the interest of natural justice, I appoint Shri. K.B. Naik, clerk of the court of this court and Shri. V.L. Panwala, advocate, as Commissioners. If the defendant mill does not furnish the necessary security, then the Commissioners to take possession of the mill attach the machinery and other material movable or immovable and to sell the same by proclamation and the amount of sale be credited into court and keep the account and submit the report." At the time of hearing, both learned counsel state that since the filing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that court. (4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court." From the aforesaid, it is clear that legal proceedings pending against the company on the date of appointment of the official liquidator whether on the making of an order of winding up or the order appointing the provisional liquidator cannot be proceeded with against the company, except by the leave of the court. It also envisages that the court which is windi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd its continuance depending upon the grant of leave by the court. However, this question should not detain us any more inasmuch as, as noticed above, this being a petition under articles 226 and 227, is not affected by the provision under section 446. Having perused the order under challenge, I am of the opinion, that on the face of it, the order is not sustainable. The order purports to have been made in exercise of power under section 17A of the Payment of Wages Act, 1936, which reads as under: "17A. Conditional attachment of property of employer or other person responsible for payment of wages.- (1) Where at any time after an application has been made under sub-section (2) of section 15, the authority, or where at any time after an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the workman, (2) or an appeal against the order under section 52 has been filed by any workman, (3) the court is satisfied that the employer or other person responsible for payment of wages is likely to evade payment of any amount that he may be directed to pay under section 15 or section 17 and that it also accepts and is of the opinion that justice would be defeated by delay and an opportunity of hearing in this regard is given to the employer, then, the authority can direct attachment of only so much of the property of the employer or other person responsible for the payment of wages as is, in the opinion of the authority or court, sufficient to satisfy the amount which may be payable under the direction. From a perusal of the order we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not anywhere state about the direction to furnish security or to satisfy what is meant by necessary security, as if the determination of the sum payable has been left to the employer for furnishing security by implication. Not only this, in the same breath in which it directs the Commissioner to take possession of the mill and attach the machinery movable or immovable it also directs the selling of the property and the amount of sale to be credited to the court. The power under section 17A has been conferred only to the extent of attaching the property and keep it at that stage until final determination of the amount payable by the authority concerned. The property of a defendant in a suit attached before judgment can be sold only when th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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