COASTAL ROADWAYS LTD. Vs. KANOI PLANTATION (P) LTD.

JUDGEMENT

(1.) This batch of execution applications raise legal points as to whether the orders passed by the company court are executable or not, and further whether these orders can be enforced by this Court being the principal civil court. The facts of the execution case are as follows : In each case the petitioners approached the company court initiating proceedings under Ss. 433 434 and 439 of the Companies Act, 1956. The learned company judge disposed of all the proceedings by passing almost identical orders allowing the respective companies to pay the debts by instalments and in default liberty was given, inter alia, to apply for execution of these orders treating them to be decrees. I felt the aforesaid two questions are considerably important, so I took assistance of Mr. A. C. Kar, learned advocate, as amicus curiae.

(2.) Mr. Kar submits drawing my attention to the various provisions of the Companies Act, 1956, that the company court has jurisdiction to pass any order as it deems fit in the winding up proceedings. It is not always necessary that the company court has to pass winding up order. Wide discretion is left with the court for passing appropriate orders as it deems fit and proper. This legal position will appear from Sec. 433(2) of the said Act. He submits that it will appear from judicial pronouncements that the object of initiating winding up proceedings is to enforce payment of a debt. This will appear from decision of this Court reported in Techno Metal v/s. V. Prem Nath Anand and a Supreme Court decision reported in Harinagar Sugar Mills Co. Ltd. v/s. : [1966]60ITR508(SC) . According to his contention the orders under execution are lawful and valid orders and these are executable.

(3.) But, he contends, these orders cannot be executed by the civil court and they must be executed by the company court itself or any other court where this order could be transferred for execution, not by the civil court. He has drawn my attention to the various Sections, viz. 634 634A 635 482 and 443 of the said Act and contends that it is a self contained code and exhaustive as far as procedure is concerned. The scheme of the aforesaid Sec. is that right from the stage of entertaining application for winding up and to bring an end to the same with logical conclusion it has to be done by the same court. He submits further that definition of the "court" is given in Sec. 2(11) of the said Act. From the definition it is clear that there is no meaning and contemplation of any court than the same mentioned in the said section. It will appear from the definition of the said Sec. the same does not cover the principal civil court of original jurisdiction. Rather definition of "district court" given in Sec. 2(14) clearly refers to principal civil court of original jurisdiction in the district but does not include the High Court in exercise of its ordinary original civil jurisdiction. There is no express provision in the Act that orders or decrees passed by the company court shall be executed by the competent court of civil jurisdiction.