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(3) Any suit or proceedings by or against the company which is pending in any court other than that in which the winding-up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by the court."

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6. Section 456(1) provides that where a winding up order has been made or where a provisional lilquidator has been appointed the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. Section 456(2) provides that all the property and effects of the company shall be deemed to be in the custody of the court as from the date of the order for the winding up of the company. Section 457(1) provides that the liquidator in a winding-up by the court shall have power, with the sanction of the court to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name and on behalf of the company. Section 391(1) provides as under :

13. As a third limb of the first ground of attack, it was urged that there is no provision for making such an application as has been made by the official liquidator and, therefore, the present application is not maintainable. The application is made by the official liquidator under section 537. The official liquidator seeks a declaration that sale of the shares is void in view of the provisions contained in section 537 and consequently for an order for refund of the amount taken by the respondent. Question is whether this relief can be obtained by the official liquidator by way of an application to the company judge in charge of the winding up proceeding of the company or he should be directed to file a suit. Contention is that there is no specific provision for making such an application. Section 446 which I have set out in extenso provides that the court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of any claim made by or against the company; 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. Sub-section (3) confers power upon the court to withdraw any proceeding either by the company or pending against the company in any court to itself and to dispose it of according to law. Therefore, when the High Court is conducting winding-up proceedings of a company ordered to be would up, its jurisdiction is not confined to its ordinary jurisdiction but a special jurisdiction is conferred upon it by section 446(2). If there is a suit or a proceeding by the company or against the company pending in any court, the same can be withdrawn and disposed of by the High Court. It may be that such suit or proceeding would not ordinarily lie in the High Court. But, the High Court acquired jurisdiction because the company is being wound up and because special jurisdiction in respect of the companies which are ordered to be wound-up is conferred by sub-section (2) of section 446. Scope and ambit of the jurisdiction can be properly inferred from clauses (b) and (d) of sub-section (2) set out above by me. The High Court would have jurisdiction to entertain and dispose of any claim made by or against the company. If the present claim made by the official liquidator could be said to be a claim made by the company, it would be covered by clause (b). Assuming that the claim presently investigated by the court in this summons is not a claim by the company because if the company was not ordered to be would up it could not have made claim as is made by the official liquidator then the case would still be covered by residuary clause of widest import, namely, court will have jurisdiction to entertain or dispose of any other question whatsoever whether of law or fact which may relate to or arise in the course of winding-up of the company. It is a statutory duty cast upon the liquidator that on a winding-up order being made, he must collect all the assets, properties, effects and choses-in-action of the company. Section 456(2) again enacts a deeming fiction by which all those properties collected by liquidator shall be deemed to be in custody of the court. If the liquidator fails to collect the assets of the company he would be charged for negligence in performance of duty. Therefore, while performing this duty if he comes across any sale of property of the company which would be void under any of the provisions of the Companies act or any other law for the time being in force and which would not be binding on him as liquidator of the company, it would be equally his duty to take action to collect that asset. If this is the duty cast on the liquidator, simultaneously power was conferred upon him under section 457(1) to institute or defend any legal proceedings. If he has power to institute or defend legal proceedings and if in performance of his duty he comes across a transaction which is void against him, the transaction becoming void because of the winding-up proceedings, it would be a question of fact arising in the course of winding up of the company and this court will have jurisdiction to decide that question. This appears to me to be the scope and ambit of jurisdiction conferred upon the High Court under section 446(2). It is necessary to put liberal construction on section 446(2) so as to widen the jurisdiction of the High Court in dealing with all questions arising in winding up. Under the Companies Act, 1956, jurisdiction is conferred upon the High court alone to entertain winding-up proceeding. It is in the interest of all concerned that winding-up proceeding shall be proceeded with expeditiously and brought to an end to avoid the agonies of large number of persons adversely affected by the fall of a company. The most important task assigned to the liquidator under the Companies Act while acting as liquidator of a company ordered to be wound up is to collect assets of the company and sell them and to distribute the realisation amongst all those who have claims against the company and payment must be made according to priorities fixed by law. This appears to me not to be not only the foremost but the most basic duty of a liquidator of a company ordered to be wound up. Now, if the liquidator in course of winding up is required to file suits for recovering properties and assets of the company, one has only to imagine at what length of time winding-up proceedings can be brought to a close.

34. Alternatively, Mr. Trivedi contended that even if article 137 applies section 458A would not apply and, therefore, the present application would not be within time. That is a hypothetical argument because once article 137 is out of the way there is no period of limitation. Assuming that article 137 applies, it would be necessary to find out whether section 458A of the Companies Act would apply or not. I have already set out above section 458A. It was strenuously urged that exclusion of certain time in computing the period of limitation permitted by section 458A cannot be availed of because two conditions for the applicability of section 458A which are cumulative in their character are not satisfied. Submission is that before section 458A can be attracted the suit or application must be in the name of and on behalf of the company which is being wound-up. Only in respect of such a proceeding, the extended period of limitation as provided by section 458A would be available. It is true that before benefit of the extended period of limitation can be availed of, the suit or application must be in the name of on behalf of the company. The present application is under section 537 and it is certainly in the name of the company. Mr. Trivedi urged that it is not on behalf of the company. It was urged that only that application could be said to be on behalf of the company which application could have been filed by the company is it was not ordered to be wound up. In other words, it was argued that cause of action must have been available even to the company if the company was not ordered to be wound up and then only it could be said to be an application on behalf of the company. In this connection it was contended that the liquidator of a company which is being wound up has two independent capacities : (i) as official liquidator of the company in liquidation and (ii) as representative of the creditors and contributories of the company. Reference was made to Kent v. Lal Communaute Des Soeurs De Charite De La Providence. In that case action was commenced by Kent and others as liquidators of the Ville-Marie Bank against the respondent to recover $ 20,000 alleged to be owing by the respondents to the bank on a promissory note. The respondents admitted the debt claimed, but alleged that it was extinguished by compensation or set-off. The applicant moved for leave to amend the summons by adding description as liquidators of the bank. Both the application and notices were dismissed holding that the liquidators were "sans qualite" to bring the action in their own name. After the appeal was dismissed by the King's Bench Division the matter was brought before the Privy Council. The Privy Council allowed the amendment and remanded the matter for decision on merits. In the process it was observed that the liquidator must sue in his own name or in that of the company according to the nature of the action, in his own name where he acts as representative of creditors and contributories in that of the company to recover either its debts or its property. Relying on this judgment, it was urged that the present application by the official liquidator is in his capacity as representative of the creditors and contributories because benefit of the application will flow to them and not as representative of the company and, therefore, it is not an application in the name of and on behalf of the company and section 458A would not be attracted. There is absolutely no merit in this contention. It is already pointed out that on a winding-up order being made, it is the statutory duty of the liquidator to collect assets of the company. If while collecting the assets, the liquidator comes across a disposition of property made by directors of the company which is void, the action brought by him to recover the same is part and parcel of the work of collecting assets of the company. To illustrate 186 shares which were the subject-matter of the litigation belonged to the company and if the respondent under a void sale had not taken them away and got them sold so as to take them beyond the reach of the liquidator and if he is now called upon to return the shares or refund the proceeds, it is nothing more nor less than collecting assets of the company and that has to be done as in the name of the company and on behalf of the company. It is true that once all the assets are collected there would be just and equitable distribution according to the provisions of law amongst various persons having claims against the company. But, that does not mean that every action taken for collecting assets of the company by the liquidator is taken in his capacity as representative of the creditors and contributories and not the representative of the company. That would be putting a very narrow construction on section 456(1) which is not warranted. The action such as the present one is on behalf of the company.