UCO BANK CHANDIGARH Vs. SUMAC ENGINEERING PRIVATE LTD

JUDGEMENT

(1.) Sumac Engineering Private Ltd. (hereinafter called 'the Company) was ordered to be wound up on 29/05/1992 and the official Liquidator attached to this Court was appointed its liquidator. The Company in the pre-liquidation period had been granted loan facilities by the United Commercial Bank through its branch situate in Sector 22-D, Chandigarh (referred to hereinafter as 'the Bank'). Respondents 2 and 3 who are the ex directors of the Company along with respondent No. 4 had stood guarantee for the loan advanced to the company and respondent No. 3 mortgaged her immoveable property as collateral security by creating an equitable mortgage in favour of the Bank. A sum of Rs. 46, 95, 555.33 Ps. together with future interest at the rate of 25.25% per annum till the date of payment is said to be due from the Company.

(2.) The Bank has filed the present suit in this Court for the recovery of the aforesaid amount from the Company. Respondents 2 to 4 have also been impleaded therein. A prayer has also been made for the passing of a preliminary final decree under Order 34 Rule 4 of the Code of Civil Procedure in respect of the immoveable property mortgaged by respondent No. 3. The suit which is described as a claim petition under S.446 of the Companies Act, 1956 (for short, 'the Act) bears a court-fee stamp of Rs. 13.00 only. Along with the suit an application has been filed under sub-sec. (1) of S. 446 of the Act with a prayer that necessary permission be granted for the institution of the suit in this Court. On notice issued to the respondent, they have put in appearance except respondent No. 4 through their counsel and without filing any written statement, an objection has been raised to the maintainability of the suit against respondents 2 to 4. Mr. Anand Chhibbar, Advocate appearing on behalf of respondents 2 and 3., the guarantors, has submitted that the suit against his clients is not maintainable in this Court and that no leave is necessary to be obtained against them under S.446 of the Act. Learned counsel appearing on behalf of the Official Liquidator has also objected to the maintainability of the suit against the Company on the ground that the petitioner has not paid ad valorem court fee. Mr. A. K. Jaiswal counsel for the petitioner has, on the other hand, contended that the Bank is filing a claim petition under sub-sec. (2) of S. 446 of the Act seeking to recover a sum of Rs. 46, 95, 555.33 Ps. and this being an application under the Companies Act, a fixed court-fee of Rs. 13.00 only is payable as provided in Art. I (d)(ii) of Schedule II of the Court-fees Act, 1870. As regards the institution of the suit in this Court against the guarantors, counsel for the petitioner submits that under Order 1 Rule 6 of the Code of Civil Procedure, the petitioner can at his option join as parties to the same suit all or any of the persons jointly and severally liable on any one contract and therefore, the guarantors have rightly been impleaded and this Court would have the jurisdiction to entertain the suit against them as well.

(3.) From the rival contentions of the parties, the following two questions arise for consideration:-