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TMI Blog1999 (5) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation) granting permission to the applicant-bank to proceed with Suit No. 272 of 1987, UCO Bank v. Aurangabad Engineering Company Limited, pending in the court of VIth Additional District Judge, Bulandshahr. The facts in brief are that the UCO Bank had filed Suit No. 272 of 1987 in the court of the District Judge, Bulandshahr, for recovery of Rs. 25,62,509.01 together with pendent lite and future interest against Aurangabad Engineering Co. Ltd., and against guarantors of the debt of the company namely, (1) Raunak Ali, (2) Mohammed Waris (now represented by his heirs), (3) Asghar Ali and (4) Abdul Hasib. The suit was transferred to the court of VIth Additional District Judge, Bulandshahr. While the suit was pending, Maharashtra Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants in the suit were entitled to be heard under rule 117 of the Companies (Court) Rules, 1959 (in short, the Rules) before an application under section 446(1) of the Act was allowed by the court. Admittedly, the applicant was a guarantor of the respondent-company in respect of the loan advanced to it and was one of the defendants also. He was entitled to be heard before the application under section 446(1) of the Act was allowed as rule 117 of the Rules provides that an application under section 446(1) for leave of the court to commence or continue any suit or proceeding against the company shall be made upon notice to the official liquidator and the parties to the suit or proceeding sought to be commenced or continued. After windi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit. The word "proceeding" is not defined in the Act. The Supreme Court in Babu Lal v. Hazari Lal Kishori Lal, AIR 1982 SC 818, held that the word "proceeding" under section 22 of the Specific Relief Act includes execution proceeding relying upon the definition in the Shorter Oxford Dictionary of the word proceeding. The term "proceeding" was held a very comprehensive term which generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a defined meaning attached to it but one the ambit of whose meaning will be governed by the statute. Admittedly, the restoration application was pending on the date the bank filed application under section 446(1) of the Act. In pursuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine the provision in regard to filing of the suit or claim but where the suit or any proceeding is already pending in any court or before any authority, the company court is only to grant leave to the applicant to proceed with such suit or proceeding. This does not provide for any limitation. An application filed under article 137 of the Limitation Act envisages that the applicant has claimed a relief before a court or an authority but if any application is filed which does not claim any relief in the suit or any proceeding, such an application is not covered by article 137 of the Limitation Act, 1963. In Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1977 SC 282, where a petition under sections 10 and 16(5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act. In Mrs. Malini Rao v. Hotel Dwaraka [1997] 90 Comp. Cas. 179 (AP), where a petition was filed under section 583(4) of the Companies Act, 1956, for winding up of the respondent-company on the ground that the petitioner was a partner of the firm by virtue of partnership deed and on the death of her father, who was one of the partners, the firm stood dissolved and the other respondents Nos. 2 to 12 continued the business but they having not settled or rendered accounts the company was liable to be wound up under clause ( a ) of sub-section (4) of section 583 of the Companies Act, 1956, which provides that the court can pass order for winding up if the company is dissolved or has ceased to carry on business and is carrying on bus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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