BAGDIGI KUJAMA COLLIERIES LTD Vs. JAGMOHAN DAS NAGAR

JUDGEMENT

(1.) This is an appeal from a compulsory winding up order made by my learned brother, Buckland, J., on 26 August 1929, against a company called the Bagdigi Kujama Collieries Limited. The winding up order was-made upon a creditor's petition. The appeal before us is on the part of the company and the ground upon which the appeal is brought is that a certain gentleman-a share-holder named M. K. Khanna was desirous of being heard at the time the winding up order was made, and the learned Judge refused to hear him on the ground that, although he was. a share-holder and a large share-holder, he was a fully paid up share-holder and therefore not a contributory.

(2.) There can be no doubt really, whether or not the wording of the Companies Act uses the word "contributory" in all cases with exactness, that a fully paid up share-holder has the right to appear and to be heard upon the application to wind up the company. That has been the settled practice for a great many years and we have been referred to the cases of In re Anglesea Colliery Co. [1866] 1 Ch. 555 and In re Rim Gold Washing Co. [1879] 11 Ch.D. 36, which say that a fully paid up share-holder has that right to present a winding up petition. The Companies Act does not, it appears to me, deal directly with the question of who shall be heard at the time when a winding up petition is being tried. If one goes on the ordinary principle, it seems to be manifest that a share-holder has an interest in the questions whether the company should be wound up, a receiver appointed over all its assets, its good will brought to nothing and its capital, as it very often happens, sold at a ruinous" loss.

(3.) In my experience, it has been the commonest form in England for a fully paid up share- holder to be heard at the hearing of the application. Our Rules do not contain the specific rule, which is No. 33, English Companies Rules, to say that a person desirous of being heard shall send notice of his claim to be heard to the attorney of the petitioning creditor by 6 o clock in the afternoon of the day previous to the day appointed for the hearing of the petition. We have general rule- No. 95 in Ch. 31, Rules of the Original Side-which says: In cases not provided for by this chapter or by the rules of procedure laid down in the Act, the practice and procedure of the High Court of Justice in England in matters relating to companies shall be followed so far as they are applicable and not inconsistent with this chapter and the Act.