A.K. Banerji, J. - (1.) The Company Application No. 32 of 1993 has been filed by the State Bank of India, having its branch at Roorkee Road, Meerut Cantt. (hereinafter preferred to as the applicant), under section 446(1) of the Companies Act, 1956 (hereinafter referred to as the Act), praying for grant of leave of this court to pursue the proceedings of Suit No. 607 of 1984 - State Bank of India v. Allodial Chemical Manufacturing (P) Ltd. and others , pending in the court of the XIIth Additional District Judge, Meerut, and further praying that the official liquidator may be permitted to be made a party to the proceedings of the suit.
(2.) Brief facts are that the applicant bank filed original suit No. 607 of 1984 against Allodial Chemical Manufacturing (P) Ltd. (hereinafter referred to as the respondent company) for recovery of its dues along with pendente lite and future interest. The said suit is pending in the court of XIIth Additional District Judge, Meerut. In the meantime, Company Petition No. 26 of 1984 was filed before this court for winding up of the respondent company and vide order dated 8.12.1986, this court directed that the respondent company be wound up and appointed the official liquidator to take over the charge of the assets of the company. A review application was filed but the same was dismissed on 8.8.1988 and winding up order dated 18.12.1986 was confirmed with slight modification. Subsequently, the present application was filed for the grant of leave to pursue the proceedings of the aforesaid suit. Before this application was heard, an application under section 5 of the Limitation Act was also filed for condoning the delay, if any, in filing the present application.
(3.) The application was opposed by the official liquidator by filing a counter affidavit. It has been mainly contended on his behalf that leave should not be granted to the applicant bank to continue their suit as the decree even if the same is obtained cannot be executed against the company by the bank as under section 456(2) of the Act, the assets and effects of the company are deemed to rest in the custody of the Company Court. Further, the secured creditor now does not have an absolute right to realise its dues as secured creditor by remaining outside the winding up. Under section 529A of the Act, the workmen of the company have part passu charge along with the secured creditor. Secondly, it has been contended that the present application was barred by limitation.;