WANDOOR JUPITER CHITS P LTD Vs. GOVINDAN NAIR

JUDGEMENT

(1.) These applications are filed for stay of proceedings of company claims filed by the Official Liquidator before the company court for realisation of amounts alleged to be due from the applicants. In all these cases the applicants claim benefit of S.3 of Act 30 of 1975, namely the Kerala Debtors Temporary Relief Act, 1975. S.3 of that Act reads as follows:

(2.) One of these applications is in respect of a claim filed by the Official Liquidator to recover amount due to a banking company in liquidation. Under S.45B of the Banking Regulation Act, 1949, the High Court has exclusive jurisdiction to entertain and decide any suit instituted or claim made by or against a banking company which is being wound up. S.446(2) of the companies Act provides that notwithstanding anything contained in any other law for the time being in force the court which is winding up a company shall have jurisdiction to entertain or dispose of (a) any suit or proceeding by or against the company, (b) any claim made by or against the company including claims by or against any of its branches in India, (c) any application made under S.391 by or in respect of the company, (d) any question of priorities which may relate to or arise in course of winding up of the company. The Companies Act and Banking Regulation Act differentiate a suit, a claim and an application though all of them are in respect of a company and relate to proceedings taken by or against a company. The expression 'claim' is not defined in the Companies Act. So one has to understand that expression to mean a claim which is legally enforceable and not barred by limitation of time. A 'suit' ordinarily means a civil proceeding instituted by the presentation of a plaint, and detailed provisions are contained in the Code of Civil Procedure for the particulars to be mentioned in a plaint. The object of sub-section 2 of S.446 is to have a speedy and a summary procedure for enforcing the existing liabilities due to the company and that is why that section confers the jurisdiction on the company court to entertain suits by or against the company, claims made by or against the company and other proceedings taken by or against the company. In the context of sub-section 2 of S.446 of the Companies Act it is not possible to understand a claim to mean a suit as well.

(3.) S.3 of Act 30 of 1975, according to us, does not take in claims made by the company against debtors of the company. The section takes in only a suit and an application in a civil or a revenue court Suits in which reliefs other than one for a recovery of a debt are prayed for are also deemed to be a suit for recovery of a debt, but a decree or a suit for possession where mesne profits is claimed is directed to be treated as a suit not for recovery of a debt. The intention of the Legislature thus seems to be to cover only suits instituted by the presentation of a plaint, or in other words, S.3 is intended to take in only suits and applications for execution of a decree as understood in the Code of Civil Procedure. This is further clear if one considers the scheme of the section which we shall refer to hereunder.