BANK OF COMMERCE Vs. JOSEPH ABRAHAM

JUDGEMENT

(1.) I am inclined to the view that an application under S.15 of the Act 31 of 1958 is not a proceeding against the creditors of the applicant debtor so as to bring S.446 of the Companies Act into play when one of the creditors happens to be a company in respect of which a winding up order has been made - see the observations in Jain Ali and Others v. Narayana Pillai and Others ( 1961 KLT 174 ) and in Thomas John v. Palai Central Sank Ltd., ( 1961 KLT 648 ) which though rendered with reference only to S.45B of the Banking Companies Act and not with reference to S.446 of the Companies Act proceed on the basis that such proceedings are not proceedings against the creditors. But there can be little doubt that an application to restrain a creditor from executing a decree obtained by him is a proceeding against him and when the creditor is, as in this case, a banking company that has been ordered to be wound up, both S.446 of the Companies Act and S.45B of the Banking Companies Act are attracted. .

(2.) The interim stay ordered in respect of all further proceedings in A.D.R.P. 1 of 1965 of the Sub Court, Meenachil is set aside but there will be a stay of the application made therein against the petitioner banking company under S.16(3) of Act 31 of 1958.