Leave under Section 446 permits suit against a liquidated company and its guarantors where security and parallel litigation exist.

Leave to sue during winding-up is appropriate where the claimant seeks recovery not only from the company in liquidation but also from directors who stood as guarantors, where respondents have provided security by mortgage or deposit of title deeds, and where the court must account for existing parallel proceedings raising similar legal and factual questions; applying the Companies Act leave principle, the court granted permission to commence and prosecute the suit against the company and the guarantor directors on those grounds.

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Issues: Whether leave under Section 446 of the Companies Act, 1956 should be granted to permit commencement/prosecution of a suit against a company which has been ordered to be wound up, where the claim is also made against directors as guarantors and two respondents have mortgaged properties with the petitioner, and a similar claim between the parties is pending in the same court.

Analysis: Section 446 of the Companies Act, 1956 bars commencement of suits against a company in liquidation except with the leave of the court; such leave is to be granted after considering the facts and circumstances of each case. Relevant considerations include whether the claim is also against persons other than the company (for example, directors who gave guarantees), whether respondents have provided security (for example, mortgage by deposit of title deeds), and whether there is an existing parallel proceeding involving similar questions of law and fact. Established practice supports granting leave where substantial claims lie against third parties alongside the company and where overlapping litigation raises the same points.

Conclusion: Leave under Section 446 of the Companies Act, 1956 is granted; the petitioner is permitted to commence/prosecute the suit in respect of the claimed amounts against the company and the directors/guarantors.

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