ALLEPPEY CHIT FUND PRIVATE Vs. STATE OF KERALA

JUDGEMENT

(1.) ON the 2nd July 1959, the petitioner herein applied to the District Court, alleppey for a winding up order against a company of which he was a contributory, and winding up was ordered by that court on the 16th October of the same year. The very institution of the; "petition was after the issue of Notification, G. S. R. 663, dated 29th May 1959, by the Central. Government under Section 10 (2) of the Companies Act,, 1956. This notification was in supersession of, all Previous notifications issued by the Provincial and State Governments under the proviso to sub-section (1) of Section 3 of the-Indian Companies Act, 1913, and it did not confer on District Courts the jurisdiction to order 'winding up. It is therefore not disputed that the District Court, Alleppey no jurisdiction with respect to the subject matter of the proceeding, ' in other words, that it had no inherent jurisdiction, as distinguished from a mere lack of territorial jurisdiction. Therefore its order was void; and, in this view, expressly so stated, the petitioner applied to this court by C. P. 31/60 for a fresh winding up order. Subsequently he seems to have thought; better of it for he has now come seeking a direction that the District Court, Alleppey, do retain and continue the proceedings; and he would have it that Section 437 of the Companies Act. 1956 warrants such a direction.

(2.) SECTION 437 rung as follows :

(3.) SECTION 219 (1) of the English Act of 1948 which combines Sections 430 and 437 of our Act says that the winding up, or any proceedings therein, may "be transferred from one court to another court, or may be retained in the court in which the proceedings were commenced although it may not be the court in which they ought to have been commenced". And Sub-section (2) of the section specifies the authorities by whom the powers of transfer given by Sub-section (1) may be exercised. Apparently Sub-section (2)uses the word, "transfer" to include also the retention for which Sub-section (1)provides -- See also the marginal note which speaks only, of transfer of proceedings and not of retention. It will be noticed that with regard to retention in the court in which the proceedings have been commenced, the language employed in subsection (1), "although it may not be the court in which they ought to have been commenced" is identical with the language of Our Section 437. It is regarded as settled law that the "another court" to which proceedings may be transferred must be a court which has itself jurisdiction to wind up (See Palmer's company Precedents, 16th Edition, Part 2, page 542 and Buckley 13th Edition, page 447 ). The law wag thug settled by In re Real Estates Co,, (1893) 1 Ch 398 with reference to the identical language of Section 3 of the Companies (Windingup)Act, 1800. It follows by parity of reasoning that the court in which proceedings may be retained "although it may not bo the court in which they ought to have been commenced'' must likewise be a court which has such jurisdiction.