1980 (10) TMI 172

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....ing on the file of Metropolitan Magistrate, Ahmedabad. The leave is sought under section 446(1) of the Companies Act, 1956. Section 446(1) of the Companies Act, 1956, provides as under: "446. Suits stayed on winding-up order.-(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose". I do not think that the leave as prayed for is necessary obviously for the following reasons: The present prosecutions are against the erstwhile directors and officers ....

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....Employees' Provident Funds Act, 1952, against the erstwhile directors and officers of the company (in liquidation) are not competent without the sanction as envisaged under section 446 because the criminal proceedings are not proceedings which could be appropriately dealt with by this court sitting as a company court. It cannot be gainsaid that the responsibility to pay the contributions to the provident fund under the aforesaid Act is of the employer, which, according to the definition of the said term in section 2(e)( ii), is the person who has ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager, managing director or managing agent, such officer (vide Inderjit C. Parekh v. B. K. Bha....