BALAJI PATEKAR Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) THIS application by Balaji Patekar under section 446 of the Indian Companies Act seeks the leave of this court to commence his suit against firm Mathura Ram Beni Ram (in liquidation) through the official liquidator.

(2.) IT appears that Balaji Patekar, claiming himself to be a prior mortgagee, filed Suit No. 4 of. 1963 in the court of the civil judge, Varanasi, on 8th October, 1964. The suit was for the enforcement of his mortgage against the mortgagors who were arrayed as defendants Nos. 1 and 2. In this suit, firm Mathura Ram Beni Ram (in liquidation) through the official liquidator was impleaded as defendant No. 3 on the allegation that it was a subsequent mortgagee. As the order of the winding up of firm Mathura Ram Beni Ram had been made on the 20th May, 1964, an objection was taken by the official liquidator in his written statement that the suit could not proceed against the said defendant without the leave of this court. Thereupon the applicant made the aforesaid application in this court on the 22nd September, 1966. Now, on the applicant's own showing, the application for leave to commence the suit against firm Mathura Ram Beni Ram was made several months after the institution of the suit. It is an admitted fact that the date on which the suit was filed was the last date of limitation. Hence the first question which arises is whether this court can grant the desired leave on an application which was filed on a date on which the suit was barred by limitation. Section 446 of the Indian Companies Act, in so far as it is material for the present purpose, reads thus:

(3.) ON behalf of the applicant reliance was also placed on the decisions in J. A. Dixit v. Official Liquidator (A.I.R. 1963 All. 284) and Simplex Manufacturing Co. Ltd. v. Hindustan Tools Manufacturing Co. Ltd. ([1960] 30 Comp. Cas. 251) but as these decisions have not the remotest bearing upon the question involved in the present case, it is not necessary to comment upon them. The result, therefore, is that this application fails and is dismissed. Application dismissed.