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TMI Blog2005 (6) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Rs. 1,500. According to the plaintiff the company is liable to make payment towards the salary from October 1, 1976, to September 31, 1979 and various increments, privilege leave, provident fund contribution, leave travel allowance and bonus totaling to an amount of Rs. 1,53,190. After the suit is filed the said respondent No. 1 company has gone in liquidation. In the High Court of Gujarat at Ahmedabad, company petition was filed against respondent No. 1 company being Company Petition No. 157 of 2000. In the said petition the Gujarat High Court has passed an order dated March 10, 2003, of winding up against respondent No. 1 company and the official liquidator is appointed to complete winding up formalities. In view of the order of winding up and the appointment of the official liquidator the plaintiff took out chamber summons being Chamber Summons No. 1188 of 2003 and by an order passed by this Court (S. Radhakrishnan, J.) on September 18, 2003, the official liquidator was permitted to be impleaded as a party defendant to the present suit. According, the plaintiff has impleaded the official liquidator as a party defendant No. 4 in the present suit. 3. The present chamber sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose; (2) The court which is winding up the company shall, not with standing anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-(a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company ; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company; Whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 446 in terms provide that nothing in sub-sections (1) to (3) of section 446 shall apply to any proceeding pending in appeal before the Supreme Court or High Court. It has been contended that in view of the provisions of section 446, sub-section (4) read with letters patent 1860 this court being a superior court of superior jurisdiction under the scheme of constitution the provision of section 446 are not applicable. In support of the aforesaid contention, learned counsel has relied upon the judgment of the Gujarat High Court in the case of Vania Silk Mills Ltd. v. Silk Mill Workers Union [1998] 92 Comp. Cas. 671 . In my opinion reliance placed on the aforesaid judgment of the Gujarat High Court is without any merit. The Gujarat High Court has held that the provisions of section 446 of the Companies Act cannot control the provisions of articles 226 and 227 under the Constitution of India. It is undoubtedly so because the constitutional jurisdiction of this court cannot be affected by ordinary legislation. However, reliance placed on the aforesaid judgment and the contention raised based thereon that because of the similar reasons the letters patent jurisdiction of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is obtained by a party who seeks to continue the proceedings outside the company jurisdiction. This is because once a winding up order is passed all the claims are required to be lodged with the official liquidator and the official liquidator is required to adjudicate the said claim and arrive at payment due to each of the creditors by taking into account the sale proceeds of the assets of the company which are available. This is required for the purpose of equal distribution of the assets to all the claimants. However, learned counsel contends that he is not liable to obtain leave under section 446 on the aforesaid grounds and still continue to prosecute the present proceedings. Each of the aforesaid contentions in my opinion has no merit. The first contention that merely because by a non-speaking order the learned single judge of this court (S. Radhakrishnan J.) has permitted the plaintiff to implead the liquidator as party I should assume that the court has permitted the plaintiff to prosecute the proceedings without obtaining leave. In my opinion the said order does not in any manner state or indicate that the court has held that the plaintiff in the present case is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of the fact that the High Court is established by virtue of letters patent the provisions of section 446 would not be attracted and the jurisdiction of the High Court is not affected by section 446 merely because it is created by letters patent in my opinion has no merit whatsoever. The establishment of a High Court under letters patent is obviously subject to various laws enacted from time to time and obviously subject to jurisdiction vested by this High Court either the original jurisdiction or appellate jurisdiction thereof Merely because the Companies Act is enacted in 1956 and letters patent is of 1860 does not mean that provision of section 460 is not applicable. The last contention advanced by learned counsel of that none except the official liquidator has locus standi to raise the aforesaid issue in my opinion has no merit. I am of the opinion that it there is a statutory stay under section 446 irrespective of the fact that the said issue is raised by the official liquidator or not law Courts are supposed to act in accordance with such statutory provision and are entitled to take cognizance of such embargo. The provision of section 446 is a statutory stay of the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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