Winding-up petitions cannot be blocked by Order 2 Rule 2, but unascertained rent claims need a recovery suit.

Order 2 Rule 2 of the Code of Civil Procedure applies only to suits and does not bar a winding-up petition under the Companies Act, 1956 because such a proceeding is a petition, not a suit. However, a winding-up petition is not maintainable where the alleged rent arrears are not finally ascertained and require detailed adjudication on liability, period of default, and quantum. In that situation, the proper remedy is a suit for recovery of dues rather than winding up. The appeal succeeded only on the inapplicability of Order 2 Rule 2, while the refusal of winding-up relief was upheld.

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Issues: (i) whether Order 2 Rule 2 of the Code of Civil Procedure applies to a winding-up petition under the Companies Act, 1956; (ii) whether a winding-up petition is maintainable for recovery of arrears of rent where the amount due is not finally ascertained and requires adjudication.

Issue (i): whether Order 2 Rule 2 of the Code of Civil Procedure applies to a winding-up petition under the Companies Act, 1956.

Analysis: Order 2 of the Code of Civil Procedure governs the frame of suits and the inclusion of claims in a suit. A proceeding for winding up under Sections 433, 434 and 439 of the Companies Act, 1956 is not a suit but a petition. Since the statutory bar in Order 2 Rule 2 operates in the realm of suits, it does not extend to a winding-up petition.

Conclusion: The bar under Order 2 Rule 2 of the Code of Civil Procedure does not apply to a winding-up petition under the Companies Act, 1956.

Issue (ii): whether a winding-up petition is maintainable for recovery of arrears of rent where the amount due is not finally ascertained and requires adjudication.

Analysis: The amount of rent payable, the period of default, and the final dues claimed by the landlord required detailed determination and could not be decided summarily. Such a dispute called for a properly constituted suit for recovery of dues, rather than a winding-up proceeding. The claim could not be treated as one for immediate winding up merely because default in payment of rent had been found in the eviction proceedings.

Conclusion: The winding-up petition was not the proper remedy for recovery of the rent dues, and the relief, if any, lay in a suit for recovery.

Final Conclusion: The appeal succeeded only to the extent that the application of Order 2 Rule 2 of the Code of Civil Procedure to the winding-up petition was disapproved, but the refusal to grant winding-up relief was maintained because the claim required adjudication in a suit.

Ratio Decidendi: Order 2 Rule 2 of the Code of Civil Procedure applies only to suits and cannot bar a winding-up petition, but a petition for winding up is not maintainable where the alleged debt is not an ascertained sum and requires regular adjudication.

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