DEUTSCHE BANK Vs. S P KALA

JUDGEMENT

(1.) THIS is a company appeal against the judgment of the learned single judge (See Deutsche bank v. S. P. Kala, Official Liquidator of Sea Transportation Pvt. Ltd. [1991] 67 Comp Cas 474 (Bom ).) who has granted leave to the appellant to file a suit against the instant company under liquidation before the company court but has denied the relief claimed by the appellant that he should be allowed to file a suit against the company in the High Court of Bombay on its original side. The contention, therefore, raised in this appeal is that the appellant be allowed to file the suit in the High Court of Bombay on its original side because the said court alone, according to the appellant, has jurisdiction to decide the claim against the third party, viz. , the guarantor in the instant case, who is, incidentally, the ex-managing director of the company under the liquidation.

(2.) A few facts relevant for considering the contention raised on behalf of the appellant are that the company under liquidation had borrowed from the appellant-bank several amounts of money which, on the date of the application, totalled to Rs. 21,07,251. 57 plus interest of Rs. 11,66,178. 74. The said loans taken by the company under liquidation from the appellant-bank were guaranteed by Debrata Das, a resident of Bombay and also the ex-director of the company. Since the said guarantor was a resident of Bombay, the appellant-bank intended to file a civil suit in Bombay against the company and the said guarantor. The appellant, therefore, filed an application under section 446 of the Companies Act seeking leave of the company court to file a civil suit against the company and the said guarantor in the High Court of Bombay on its original side. The said application is registered as Company Application in Liquidation Proceedings No. 8 of 1989 in Company Petition No. 1-S of 1987.

(3.) THE appellant raised a contention before the learned company judge in the said application that, since a third person, viz. , a guarantor, was also a defendant in a suit which the appellant wanted to file against the company, the company court here would not have power and jurisdiction to decide such a suit under section 446 (2) of the Companies Act. He had also urged before the learned company judge that a party of the cause of action had arisen in Bombay and one of the defendants also was a resident of Bombay, and, therefore, such a suit could be filed in the court at Bombay having jurisdiction to try such a suit. The learned company judge negatived both these contentions. He, however, granted leave to the appellant to file a suit before the company court in Goa, i. e. , the learned company judge who is assigned the work at the Panaji bench before whom the winding-up proceedings of the instant company under liquidation would also be continued. Feeling aggrieved, the appellant has preferred the instant company appeal against the aforesaid order of the learned company judge declining him leave to file a suit at bombay.