Permod Kohli, J. - (1.) PUNJAB and Sind Bank has filed this petition for seeking leave of the company court to continue with Civil Suit No. 623 of 2001, for recovery of Rs. 6,82,129 along with interest, pending in the court of Mr. Sudeep Goel, Civil Judge (Junior Division), Chandigarh. Copy of the plaint has been placed on record. The bank instituted suit against M/s. Domino Leathers Ltd., company in liquidation, and its ex -directors in their capacity as guarantors as also the Industrial Development Bank of India (hereinafter referred to as the "IDBI") and Mr. D.P. Ojha, official liquidator, attached to this Court. Notice of the suit was issued to the official liquidator, who seems to have resisted the plea of continuance of the suit in contravention of Section 446 of the Companies Act, 1956 (hereinafter referred to as "the Act"). The bank has, accordingly, approached this Court seeking leave of company court to continue with the suit.
(2.) NOTICE of this petition was issued to the official liquidator who has filed his reply and resisted the petition on the following grounds: (1) That at this stage, the claim of the Punjab and Sind Bank is barred by time; and (2) That the petition has been filed after the delay of about five years from the date of passing of the winding up order. The sole question is whether the bank should be granted leave to continue with the suit or not ? Section 446 of the Act reads 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 proceedings 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 Tribunal and subject to such terms as the Tribunal may impose. (2) The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of: (a) any suit or proceeding by or against the company ; (b) any claim made by or against the company (including claims by or against any of its branches in India) ; (c) any application made under Section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company ; whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960 (65 of 1960) ... (4) Nothing in Sub -section (1) or Sub -section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court.
(3.) SUB -section (1) of Section 446 of the Act prohibits institution or commencement of legal proceedings against the company on the passing of the winding up order or the appointment of provisional liquidator and, if any, proceedings were pending on the date of the winding up order, the same cannot be proceeded with against the company except with the leave of the court. Sub -section (2) of Section 446 of the Act, however, empowers the Tribunal (company court) to entertain or dispose of any suit or proceeding by or against the company irrespective of the fact whether such suit or proceeding or claim made on or before of the winding up order.;