THOMAS Vs. CATHOLIC BANK OF INDIA LTD.

JUDGEMENT

(1.) THE proceeding in respect of which leave is now sought under Section 446 of the Companies Act was instituted in July 1964; the winding up order was made much earlier, in October 1961; and this application was brought only in November 1964. The question is whether once a winding up order has been made, leave is a condition precedent to the institution or whether subsequent leave can be granted. Having regard to the purpose of the section, I am inclined to follow the view taken in People's Industrial Bank Ltd. v Ram Chander Shukul ( : A. I. R. 1930 All. 503), Nazir Ahmad v Peoples Bank of N. I. ( : A. I. R. 1942 Lah. 289 (F. B.), Krishna Piliai v The Travancore National & Quilon Bank, Ltd. (1943 T. L. R. 458 (F. B.) and Suresh Chandra v Bank of Calcutta ( : 54 C. W. N. 832) that it can, in preference to the view Jaken in Peoples Bank, Lahore v Fateh Chand ( : A. I. R. 1936 Lah. 401), Re: Steel Construction, Ltd. ( : 40 C. W. N. 312) and Harnarain v Kanhaiyalal ( : A. I. R. 1940 Cal. 166) that it cannot. As pointed in Puran Mai v Central Bank of India (A. I. R. 1953 Punj. 235) the word, "commenced" occurring in the section must, in relation to the words, "suit or other legal proceeding", be understood in the English sense as meaning the issue of process by the court rather than the presentation of the plaint or other paper by which a legal proceeding is instituted - - in other words as observed in Krishna Piliai v Travancore National & Quilon Bank Ltd. (1943 T. L. R. 458 (F. B.) the bar is not against the party instituting the legal proceeding but against the court commencing the adjudication thereof by the issue of process. If that be so, the institution is not affected by the want of leave and the worst that can be said is that any proceeding taken by the court before the Application No. 614 of 1964 in B. C. P. No. 4 of 1961. Decided on 10 -2 -1965 grant of the leave would be bad, a defect which can be remedied, if necessary, by taking the proceeding afresh after leave has been granted. In this case the petitioner was, on his own showing, aware of the winding up order when he instituted the proceeding in question and he has no excuse whatsoever for not applying for prior leave. Therefore, in allowing this application and granting leave, I impose the following conditions: