1960 (10) TMI 19

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....e Companies Act, 1956. This notification was in supersession of all previous notifications issued by the Provincial and State Governments under the proviso to sub-section (1) of section 3 of the Indian Companies Act, 1913, and it did not confer on district courts the jurisdiction to order winding up. It is therefore not disputed that the District Court, Alleppey, had no jurisdiction with respect to the subject matter of the proceeding, in other words, that it had no inherent jurisdiction as distinguished from a mere lack of territorial jurisdiction. Therefore, its order was void ; and, in this view, expressly so stated, the petitioner applied to this court by C. P. No. 31 of 1960 for a fresh winding up order. Subsequently, he seems to have ....

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.... it may not be the court in which they ought to have been commenced" it clearly contemplates a court in which they could have been commenced having regard to the subject matter of the proceeding. In my view section 437 can apply only to a case where there is a defect of territorial jurisdiction and not a case where there is an inherent want of competence regarding the subject matter of the proceeding. The section does no more than what section 3(3) of the Indian Companies Act, 1913, which says, "Nothing in this section shall invalidate a proceeding by reason of its being taken in a wrong court", did, excepting that it contemplates a direction by the High Court for the retention and continuance of the proceedings in the wrong court. The word....

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.... with regard to retention in the court in which the proceedings have been commenced, the language employed in sub-section (1), "although it may not be the court in which they ought to have been commenced ", is identical with the language of our section 437. It is regarded as settled law that the "another court" to which proceedings may be transferred must be a court which has itself jurisdiction to wind up : [see Palmer's Company Precedents, 16th edition, part 2, page 542 and Buckley, 13th edition, page 447]. The law was thus settled by Real Estates Co. In re [1893] Ch. 398 with reference to the identical language of section 3 of the Companies (Winding-up) Act, 1890. It follows by parity of reasoning that the court in which proceedings may ....