9911796707
TMI Blog1997 (7) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidator. This official liquidator has taken over the assets of the company on 29th of September, 1993. In a nutshell, it can be stated that the company is now under winding up process. 3. Against the company a suit was filed by the State Bank of India at Gwalior. To the maintainability of the suit, a preliminary objection was taken. This objection was to the effect that the suit cannot proceed unless and until leave of the company court in terms of 444 and 446(1) of the Companies Act, is obtained. The trial Court has held that the suit can proceed notwithstanding the provisions contained in Section 446 of the Companies Act. It is against the above order, this petition has been filed. 4. Reliance is being placed on the decision repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say 'say' 'I will prove in respect of my debt'. If so, he comes into the winding up. It is also summarised in Palmer's Company precedents, Vol. II, p. 415. Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made . The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 171 of the Indian Companies Act, 1913. But that does matter. 8. The two decisions noticed above do support the proposition put across by the learned counsel for the petitioner. 9. The learned counsel appearing for the State Bank of India has, however, stated that the Supreme Court of India in the later case did not approve of the transfer of the case from the Court at Hyderabad to the Court at Bombay. It be seen that above is a totally different proposition. The Supreme Court of India has no where said in the aforementioned case that leave is not required. Once leave is granted, it may be possible for the trial Court to proceed with the litigation at Gwalior notwithstanding the fact that the registered office of the Company is not at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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