TaxTMI 
TaxTMI 
TaxTMI 
1994 (4) TMI 238
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....ith interest thereon. The further prayer was, in default of payment a final decree might be passed directing the sale of mortgaged properties and for ancillary reliefs. The averments in the plaint are briefly as follows : The first respondent is a limited company. The third and fourth respondents are the advisors and directors, respectively, of the first respondent-company. The first respondent deposited with the appellant the documents of title relating to its landed property at Industrial Development Area, Nacharam Tehsil, District Hyderabad (presently Ranga Reddy District), with an intention to create an equitable mortgage of immovable property covered by those documents together with all structures and buildings thereon. On October 6,....
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....was appointed as liquidator of the company. On July 23, 1990, a meeting was held in the presence of the official liquidator. The appellant brought to the notice of the official liquidator the pendency of these two suits. The appellant filed Company Application No. 229 of 1991 in the aforesaid company petition under section 446 of the Companies Act (hereinafter referred to as "the Act"). The prayer in the application was for leave to prosecute the two original suits, bearing Nos. 7 of 1986 and 507 of 1989 pending on the file of the Additional Subordinate Judge, Ranga Reddy District at Saroor Nagar. According to the appellant, since the properties were situate in Ranga Reddy District it would be just and convenient to continue to prosecute t....
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....at it is true that the secured creditor stands outside the winding up proceedings. That does not mean the company court loses its jurisdiction under section 446(2) and (3) of the Act. The law laid down in M.K. Ranga-nathan's case [1955] 25 Comp. Cas. 344 needs to be reviewed. As on today, the law is, the company court is entitled to grant leave on such terms and conditions as it may impose, as laid down in Sudarsan Chits (I.) Ltd. v. G. Sukumaran Pillai [1985] 58 Comp. Cas. 633 ; AIR 1984 SC 1579, the interest of the official liquidator is of paramount consideration. Where, therefore, the transfer of suits is necessary in the interest of justice and equity the orders of the courts below cannot be found fault with. Under sub-section (3) of s....
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....is court in M.K. Ranganathan's case [1955] 25 Comp. Cas. 344 , 351. At pages 607 and 608, in paragraphs 15 and 16 (of AIR 1955 SC 604), it was held : "The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923] AC 647 (HL) : 'The phrase "outside the winding up" is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say "the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the 'winding up' and shall enforce my rights as mortgagee". This is to be contras....
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....g up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the court would be valid and could not be challenged as void under section 232(1) of the Indian Companies Act." That case no doubt dealt with the forerunner to section 446, namely, section 171 of the Indian Companies Act, 1913. But that does not....