Decided on December 21,1970



RAMANUJAM, J. - (1.) THIS revision raised an interesting question of law. The respondent, Nagappa Chettiar, filed a suit, O. S. No. 27 of 1969, on the file of the lower court for recovery of certain monies due under a promissory note executed by the petitioners, and their defence was that the promissory note was executed in connection with the business of a company by name Chellam transports Ltd. , and that the money could, therefore, be recovered from the assets of that company only and not personally from them. The petitioners filed an application I. A. No. 95 of 1970, for a notice under Order 8-A, Civil procedure Code, to bring in Chellam Transports Ltd. , which was under liquidation by then, as a co-defendant, and this application was opposed by the respondent on the ground that be had nothing to do with Chellam Transports ltd. , and that under section 446 of the Companies Act of 1956, the petitioners have to obtain sanction of the company court for initiating proceedings against the company under Order 8-A of the Code of Civil Procedure. The Court below upheld the objection of the respondent and rejected the application on the ground that the application for initiating proceedings under Order 8-A against the company, which is in liquidation, cannot be maintained without the leave of the company court. It is the correctness of the said order which is canvassed in this revisions.
(2.) THE learned counsel for the petitioners contends that no leave of the company court is necessary for an applicant under Order 8-A rule 1 that a resort to Order 8-A will not amount to initiation of any proceeding against a company as contemplated in section 446 of the companies Act and that section 446 applies only to original proceedings such as suits, etc. , and not to interlocutory applications in a pending suit. THE learned counsel contends that the words "other legal proceedings" in section 446 (1) of the companies Act have to be construed as to denote original proceeding and that they cannot comprehend interlocutory applications in a pending proceeding. THE learned counsel compares this provisions with section 16 (2) (b) of the provincial Insolvency Act to substantiate his contention that the words "other legal proceeding" can refer only to original proceedings initiated against the company. In Periakarupa THEvar v. Vellai alias Ocha THEvar the scope of section 141, Civil Procedure Code, came up for consideration. In that case there was an ex parte order in a reference proceeding under section 146, Criminal Procedure Code, and when the ex parte order was sought to be set aside under Order 9, rule 13, invoking section 141 of the Code of Civil procedure, a Division Bench of this court held that section 141 could not be called into play, that section 141 relates to original matters in the nature of suits, that the proceedings in a civil court under section 146, Criminal procedure Code, cannot with any propriety be called "original" in character and that, therefore. Order 9, rule 13, cannot be invoked in relation to reference proceedings. Kuppuswami Ayyar J. in Calicut Bank Ltd. v. Nakkat, however, construed the word "proceeding" in section 171 of the companies Act, 1913, as applying to execution proceedings also, and held that it was not confined to original proceedings alone, and that a claim petition which was itself a proceeding in execution, fell within the mischief of the section. It has also been clearly laid down by the Federal Court in governor-General in Council v. Shiromani Sugar Mills that the expression "other legal proceeding" in section 171, need not, and therefore should not be construed to mean original proceedings in a court of first instance, analogous to a suit initiated by means of a petition similar to a plaint, that section 171 must be construed with reference to other section of the act and the general scheme of administration of the assets of a company in liquidation laid down by the Act, and that leave of court is required for execution proceeding against a company in the ordinary course even though they are not original proceeding. In that case their Lordships of the Federal Court held that though a proceeding under section 46 of the Income-tax Act cannot be construed as a proceeding in any ordinary court of law which will be comprised within the words "other legal proceedings" occurring in section 171, the income-tax authorities have to apply for leave of the winding up court before issuing the certificate contemplated in section 46 (2) by the Collector for the collection of arrears of income-tax. In view of this decisions it is not possible to confine the scope of section 446 only to original proceedings as contended for by the learned counsel for the petitioners. It was then contended on behalf of the petitioner that the Order 8-A, having been invoked by them in defence of the suit filed against them, section 446 of the Companies act cannot stand in their way. Reliance has been placed on the following decisions : In Andhra Paper Mills Co. Ltd. v. Anand Bros a Division bench of this court had occasion to consider whether leave of the company court under section 171 has to be obtained by a defendant for setting up a crossclaim or set off in a suit filed by a company in liquidation and Rajamannar C. J. had expressed as follows : "on the principle and the in the interests of fairness and justice, we think that a party against whom the company has instituted a suit, should not be prevented from establishing that on a proper taking of the account between the company and the party, i. e. , after adjusting mutual credits and debits, no amount is due to the company or that the extent of its liability is more or less reduced. When the company had made a claim, any plea which has the effect of reducing the claim if successful would be a plea in defence. It may be for certain purposes, as for example, for court-fees, a written statement containing a plea of set-off or counter-claim is treated as a cross-suit, but that is not conclusive of the matter. THEre can be no doubt that the pleading by the defendant is defensive in character. If it is so, then section 171 cannot apply. " * Viswanatha Sastri J. also, in his concurring but separate judgment, held that the right of set-off is a ground of defence and is required by Order 8, rule 6 of the Civil Procedure Code to be pleaded as part of the written statement of the defendant, that the procedural law that the written statement containing a set-off has the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment and pass a single decree in respect of both the original claim and the set-off, however, does not mean that a written statement containing a plea of set-off is to be treated as a plaint in all respects and for all purposes, that the set-off allowed by section 229 of the Companies Act is a weapon of defence and a written statement pleading a set-off filed in answer to a suit by the official liquidator is a defensive proceeding and that the official liquidator having brought the defendant before the court, the later must, in common justice, have a right to contest the suit by raising all defences allowed to him by law including a defence of set-off, Raghava Rao J. in Palghat Wariar Bank Ltd. v. Padmanabhan considered the necessity or otherwise of leave of court when a claim petition was filed by a third party when the company in winding up attached certain properties in execution of a decree in its favour as that o its judgment debtors and held that such claim petition can be proceeded with against the company without the leave of the court under section 171 of the Companies Act of 1913 which corresponds to section 446 of the present Act. The learned judge was of the view that the words "legal proceeding" in section 171 cannot comprehend a claim petition by a third party and that it would be most inequitable for a company in liquidation to institute execution proceedings and rely upon section 171, to debar persons from defending their property in those proceedings, that the object and purpose of section 171 is not to prevent third parties from putting forward their claim to be the properties sought to be proceeded against by the company and that the claim proceeding in the course of the execution proceeding taken by the company itself is in the nature of an independent proceeding by a stranger to the execution petition in vindication of his rights to the property attached, which is only incidental to the main proceeding stated by the company itself. Rahmat Ali v. Calcutta National Bank also held that the meaning of the words "other legal proceeding" in section 171 must not be confined within narrow limits, that they need not necessarily refer to proceedings analogous to a suit initiated by means of a petition similar to a plaint, and that the words "against the company" in section 171 means a proceeding where a liability is intended to be fastened on the company or its assets and not a proceeding commenced by a person with the object of escaping liability arising out of a proceeding commenced by the company itself and that if a person wants to file a suit to escape liability on the ground that the company claim against him in unfounded, it is an proceedings against the company, but where the company has started the proceeding, that is, put forward its claim in a court of law, any remedy available by way of defence to escape liability, which the company wants to fasten on him, should not be deemed to be a proceeding commenced or continued against the company. The decisions of the Federal Court above referred to should to taken as to have set at rest the earlier view that the words "other proceeding" should connote only an original proceeding initiated in a court of law, In Padmanabhan v. Narayanan the court held that permission of the company court under section 446 is required only where proceedings are started with the object of fastening liability on the company or with the intention of escaping liability in respect of a claim which has not been brought into court by the company itself. The decisions aforesaid proceed on the principle that when once an action by the company itself has been proceeded with there is no necessity for the defendant in that action to obtain leave for any defensive proceeding on his part. But it is doubtful whether the principle laid down in those decisions will apply to the facts of the present case where the company in liquidation has not initiated the proceedings. In this case before the application under Order 8-A was filed the company was nowhere in the picture and what the petitioners want of establish is that the company in liquidation is liable to answer the suit claim or that it has to indemnify them in case a decree is passed against them in the suit filed by the respondent. The learned counsel states that as the provisions of order 8-A have been held not to apply to winding-up proceedings, it has to be held that no sanction is required under section 446 for taking proceedings under Order 8-A. I am not inclined to agree. It is true that the third party proceedings under Order 8-A cannot apply to the winding-up proceedings before a court and that the court in winding up has no jurisdiction to settle disputes between the parties outside the winding-up. This has been so held in In re A singer and Company (Hat Manufacturers) Ltd. by the Court of Appeal. In that case in the winding-up proceedings third parties were sought to be brought in under the third procedure and the court held that the third party procedure is not applicable to proceedings in winding-up of companies. But that will not establish the contrary submission that for a third party procedure, the leave of the company court is unnecessary. For deciding the question whether leave of the company court is necessary or not, the substance of the claim made by the applicant invoking the third party procedure has to be looked into in the light of the object of section 446. In the case the petitioners not only seek to avoid a decree being passed against them but also seek a decree against the company in liquidation in case the respondent obtains a decree against them in the suit. It is well known that the object of the winding-up is to put all unsecured creditors upon an equality and to pay them pari passu and to accomplish this, it was indispensable that proceedings against the company be way of action, execution, distress or other process should be suspended as otherwise the winding-up would resolve itself into a scramble for the assets. With a view to carry out the objects of the winding-up, the court is empowered after the presentation of the petition for winding up, to restrain or stay the proceedings pending on that date and to grant leave for initiating or proceedings with any claim against the company. In this case the suit has been filed by the respondent to recover a debt due on a promissory note from the petitioners and as has been held by Venkataraman J. in Adaikappa Chettiar v. Official Assignee, even if the money borrowed under the promissory note has been utilised for the purpose of the company, it would be a separate debt of the promissor and when the petitioners as promissor who are liable to answer the suit-claim seek to implead the company in liquidation by invoking third party procedure, it clearly means that the petitioners seek to enforce a claim against the company by establishing their case that they are entitled to indemnity or contribution from the company in liquidation. The learned counsel, however, seeks support from a decision in Subramanyam v. Narasimham, where a division Bench of this court, while considering the scope of section 16 (2) (d)of the Provincial Insolvency Act, expressed the view that a suit by a decree-holder under Order 21, rule 63, against a successful objector, who is alleged to have purchased the property from the judgment-debtor (insolvent)prior to attachment effected before the insolvency does not fall within the prohibition that a party's ordinary civil right should not be taken away or reduced unless there is a clear statutory authority to do so that the prohibition in section 16 is directed not to the court but to the party and, therefore, when a party is wholly ignorant, of the adjudication he should not be penalised for not bringing to the courts notice a matter of which he was wholly ignorant and that the prohibition is merely a matter of procedure and a restraint on the exercise of jurisdiction, and there is no inherent want of jurisdiction. But the above decision is based on the fact that the suit is filed under Order 21, rule 63, by a decree-holder against a successful objector who has not interfered with the insolvency proceeding or hampered or affected prejudicially the administration of the insolvent's estate by the insolvency court. That decision cannot apply to the facts of this case where the company in liquidation is sought to he subjected to a decree for the suit amount. On a due consideration of the matter I am of the view that, having regard to the object underling section 446 of the Companies Act, which is one to prevent all litigations against the company in liquidation except with the permission of the company court, leave of the company court is necessary for a proceedings initiated by a defendant under Order 8-A. In that view the order of the lower court rejecting the petitioners'application under Order 8-A has to be upheld. The civil revisions petition, is therefore, dismissed but, in the circumstances, no costs.;

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