Voluntary winding up and unpaid share calls: liquidators may sue without prior sanction, and limitation runs under the residuary article.

In voluntary winding up, liquidators may make calls and sue to recover unpaid share money without prior court sanction, and the absence of a separately prepared list of contributories does not invalidate the proceeding. The Court held that, on winding up, a shareholder's liability for unpaid shares becomes statutory under the companies law rather than purely contractual. As a result, limitation is governed by the residuary article instead of the article applicable to company calls. The decree in favour of the liquidators was sustained and the appeal was dismissed.

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Issues: (i) Whether in voluntary winding up the liquidators could make a call and institute a suit for recovery of unpaid share amount without obtaining court sanction or preparing a list of contributories; (ii) whether the shareholder's liability after winding up was statutory so that the residuary limitation article applied instead of the article applicable to company calls.

Issue (i): Whether in voluntary winding up the liquidators could make a call and institute a suit for recovery of unpaid share amount without obtaining court sanction or preparing a list of contributories.

Analysis: The relevant provisions of the Indian Companies Act, 1913 recognised that, on winding up, contributories were liable to contribute to the assets of the company and that the liquidator in voluntary winding up could exercise the power of making calls. The liquidators were therefore not required to obtain prior court sanction merely to issue the call or file the suit. The absence of a separately prepared list of contributories did not invalidate the proceeding in voluntary liquidation, as such formality was not obligatory in the same manner as in compulsory winding up.

Conclusion: The objection to maintainability failed and the liquidators were competent to proceed with the suit.

Issue (ii): Whether the shareholder's liability after winding up was statutory so that the residuary limitation article applied instead of the article applicable to company calls.

Analysis: The Court held that once winding up intervened, the nature of the liability changed. Although the unpaid share amount may have been preceded by a demand from the directors, the supervening event of voluntary winding up attracted the statutory scheme governing contributories. The liability then arose by force of the statute, not merely from contract. On that basis, the claim was not governed by the article dealing with calls made by a company, but by the residuary article of limitation.

Conclusion: The liability was statutory and the suit was within the applicable limitation period.

Final Conclusion: The decree in favour of the liquidators was sustained and the appeal was dismissed.

Ratio Decidendi: In voluntary winding up, the liquidator may make calls and sue for recovery of unpaid share money without prior court sanction, and upon winding up the shareholder's liability becomes statutory, attracting the residuary limitation provision rather than the article governing company calls.

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