1930 (11) TMI 14

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.... Act, 1913, which runs as follows: "For the purposes of this part, the expression 'unregistered company' shall not include a railway company incorporated by Act of Parliament or by an Act of the Governor-General in Council, nor a company registered under the Companies Act, 1866, or under any Act repealed thereby, or under the Companies Act, 1882, or under this Act, but save as aforesaid, shall include any partnership, association or company consisting of more than seven members. At the hearing of the petition, affidavits were filed on behalf of the petitioner and of the company and, after hearing the learned Advocates for the parties, my learned brother, Cunliffe, J., ordered that the company should be wound up under section 271, Compani....

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.... affidavits put forward in support of the Administrator-General's petition as to the merits, intended to hold that this partnership consisted of more than seven members, or that it ought to be wound up, even although the number of the partners was not more than seven. In these circumstances I do not think that we ought to determine the merits of the petition in this appeal, and if we are satisfied that the construction which the learned Judge has put upon section 270 is not correct, the case must be remanded for a learned Judge on the Original Side to determine the case according to the true construction of section 270, Companies Act. Now, on behalf of the appellants, Mr. Burjorjee has referred to certain decisions of the High Court in E....

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....y Court Judge had no jurisdiction to make an order for the winding-up of the company. On appeal, Lord Halsbury observed: "I look upon section 199, Companies Act, 1862, as having enacted something which there must be in order to start this machinery of winding-up, namely, the required number, that is exceeding seven, of person who are actually members. I think that the language is susceptible of no other construction." And Lindley, L.J., at page 669 Page of [1895] 1 Ch D-(Ed.), added: "What, then, are the conditions which must be complied with in order to give the Court jurisdiction to wind up what is here called an unregistered company? It must be some partnership, association or company 'consisting of more than seven members'. What does....

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....han those expressly excepted by the section) which consists of two or more members. If that had been the intention of the Legislature in enacting section 270, Companies Act, 1913, it is not easy to understand why the Legislature should have gone out of its way to enact that the expression "unregistered company" should include any partnership, association or company consisting of more than seven members and, in my opinion, such an anomalous construction was neither intended nor effected by the Legislature in enacting section 270, Companies Act, 1913, I am of opinion, upon a true construction of section 270, that the Court has jurisdiction in a proper case to order the winding-up of a partnership, association or company under section 271, if ....