TaxTMI 
TaxTMI 
1970 (9) TMI 62
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....efore the decree was passed, the company had executed on January 31, 1951, a deed in favour of Bansidhar mortgaging its fixed assets for securing re-payment of Rs. 1,25,000. After the decree of the trial court, the company executed on January 21, 1954, a second deed also in favour of Bansidhar mortgaging the fixed assets for re-payment of an additional sum of Rs. 2,00,000. The decree of the subordinate judge in the plaintiff's suit was confirmed on August 4, 1954. Against that decree the company and Bansidhar preferred Second Appeal No. 1380 of 1954 to the High Court of Calcutta. Bansidhar also filed a suit in the High Court of Calcutta on its original side to enforce the two mortgages in his favour, and obtained a preliminary mortgage decr....
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....to certify the appeal under article 133(1)(b) and (c) of the Constitution. This court dismissed the petition against the order of the High Court in second appeal and granted special leave to appeal against the order of the High Court refusing to certify the case. The order passed by the High Court in second appeal having affirmed the order of the District Court, unless the appeal preferred to this court involved some substantial question of law of public or private importance, the case could not be certified under article 133(1)(b ) even if the proposed appeal involved directly or indirectly some claim or question respecting property of value of not less than Rs. 20,000. The High Court could not also certify the case as a fit one for app....
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....l. 166 and of the High Court of Andhra Pradesh in Godavari Sugars and Refineries Ltd. v. Kambhampati Gopalakrishnamurthy [1960] 30 Comp. Cas. 104; AIR 1960 AP 74 In these cases it was held that leave of the High Court which has ordered winding up of a company is a condition precedent to the institution of proceedings against a company in liquidation, and that proceeding initiated without obtaining leave of the court in the first instance must be dismissed. There are however, other cases which take a contrary view: Nazir Ahmad v Peoples Bank of Northern India Ltd. [1943] 13 Comp. Cas. 1 ; ILR 1942 Lah. 517; AIR 1942 Lah. 289 (FB); Suresh Chadra Khasnabish v. Bank of Calcutta Ltd [1950] 54 CWN 832 (FB); People's Industrial Bank Ltd. v. Ram....
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....rosecuted the appeal. There is no evidence on the record whether the liquidators obtained the sanction of the court under section 179(1)(a) of the Companies Act 1913. But there is no reason to suppose that the liquidators did not obtain the sanction of the court If sanction of the court under section 179 to prosecute the appeal the High Court was obtained, and it must be so assumed, the contention raised on behalf of Bansidhar loses all significance of an application is only a continuation of the suit and the control of the High Court ensures during the execution proceeding also. If the sanction of the court has been obtained for the prosecution of the suit, it would be plainly unnecessary to obtain fresh sanction to the institution of exec....
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....usly or subsequently commenced, will be given unless the liquidator is able and willing to give in the winding up the relief which could be obtained in the action". The Calcutta High Court in Suresh Chandra v. Bank of Calcutta [1951] 21 Comp. Cas. 110 (Cal.) examined the decisions of the English courts in some detail and observed that as regards section 171 of the Indian Companies Act, 1913, the High Court has jurisdiction to grant leave to proceed with the suit or other proceedings against a company in liquidation even if such leave was not obtained for its commencement. The proceedings may at best be regarded as instituted on the date on which the leave was obtained from the High Court. Considering the question both on principle and....