S. Chandrashekhar, J. - (1.) AGGRIEVED by dismissal of application under Section 446 of the Companies Act, 1956 filed in Title Suit No. 91 of 2004 seeking transfer of the Title Suit to Calcutta High Court, the present writ petition has been filed.
(2.) THE brief facts of the case are that, an agreement of sale dated 10.08.1995 was executed by M/S Protective Saving & Finance Limited through, its Managing Director namely, Manindra Nath Mukherjee in favour of Sardar Harbhajan Singh and Sardar Satpal Singh. Another registered deed of sale dated 04.05.1998 was executed by M/S Protective Saving & Finance Limited through, its Director namely, Sunil Kumar Saha in favour of Rajendra Singh Chahal. The petitioners namely, Sardar Harbhajan Singh and Sardar Satpal Singh filed Title Suit No. 74 of 2000 against M/S Protective Saving & Finance Limited and others seeking specific performance of agreement of sale dated 10.08.1995. The said suit was decreed on 05.08.2002 directing M/S Protective Saving & Finance Limited and others to execute sale deed in respect of property comprised in agreement of sale dated 10.08.1995. In the meantime Company Application Nos. 1 -46 of 1997, 1 -18 of 1998 and 1 -2 of 1999 were filed before the Company Law Board, Eastern Region Bench at Calcutta. The Reserve Bank of India also passed an order restraining M/S Protective Saving & Finance Limited from accepting deposits from any person. On 13.10.2003, notice was issued by the Official Liquidator to Sunil Kumar Saha, the director of the company. Thereafter, Title Suit No. 91 of 2004 was filed by the Rajendra Singh Chahal -respondent No. 1 against the petitioners. In the said suit M/S Protective Saving & Finance Limited has also been made proforma defendant No. 3. The case of the plaintiff -respondent No. 1 is that the decree obtained in Title Suit No. 74 of 2000 is fraudulent, void, illegal and inoperative. It is stated that in Company Petition No. 442 of 2002, Official Liquidator was appointed on 21.07.2003 by the Calcutta High Court. Since the company has gone in liquidation and the matter is sub -judice before the Calcutta High Court, the petitioners filed application dated 06.01.2014 seeking stay of further proceeding in Title Suit No. 91 of 2004 with a further prayer to transfer Title Suit No. 91 of 2004 to the Calcutta High Court. Application dated 06.01.2014 filed by the petitioners seeking transfer of Title Suit No. 91 of 2004 has been dismissed by the Trial Court vide order dated 20.05.2014. Heard the learned counsel for the parties.
(3.) MR . V. Shivnath, the learned Senior counsel appearing for the petitioners referring to Section 446 of the Companies Act submits that, the object of Section 446 is to save the company from unnecessary litigation and from multiplicity of proceedings. The provision under Section 446 of the Companies Act has been engrafted for compelling the creditors and others to prove their claims in the winding up proceeding and for achieving the said purpose, all suits and proceedings pending against the company are stayed. The learned Senior counsel for the petitioners submits that, the company is defendant No. 3 in Title Suit No. 91 of 2004 and therefore, without leave of the Calcutta High Court in Company Petition No. 442 of 2002, the respondent No. 1 could not have filed the said suit and the said suit cannot proceed. It is further submitted that, the expression "any proceeding" occurring in Section 446 of the Companies Act would include a suit also and therefore, in view of the embargo under Section 446, no suit against the company can be filed in any Court without leave of the Calcutta High Court. Relying on the decision in "Dwarka Prasad Agarwal and anothers v. Ramesh Chander Agarwal and Others", reported in : (2003) 6 SCC 220, the learned Senior counsel re -enforces his argument that "leave of the Court" is the condition -precedent for instituting any proceeding against the company.;