IN RE: BRITISH INDIA BANKING AND INDUSTRIAL CORPORATION LTD; VITHALDAS DHANJI AND CO Vs. SHIVA CHEDUMBARIAH

JUDGEMENT

(1.) The facts briefly are that contributory No. 136, Macherla Ramanna Shiva Chedumbariah, was a shareholder of the company and as such had become liable to contribute to the assets of the company in its liquidation. The company not being aware of his death put his name on the list of contributories in the liquidation proceedings, and in due course the Court made the balance order for payment. After the liquidator realised such amounts as he could in liquidation, he sold the rest of the claims, and the present assignees purchased the claim payable by contributory No. 136. The assignees now seek for an order againt the respondent, Shiva Chedumbariah, as the heir and legal representative of the deceased contributory No. 136, for payment of the amount appearing against the name of the deceased contributory in the balance order. On behalf of the assignees it is contended that until the company was informed of the death of the contributory the deceased continued to be liable as a member and the company was not bound to take notice of the death otherwise. Therefore, the proceedings adopted by the company, in the name of the deceased, are good and are not a nullity as would otherwise be the case under the ordinary law. In this connection reliance is placed on New Zealand Gold Exhibition Co. Newbery Vautin Process v. Peacock [1894] Q.B. 622, and in particular on the observations of Lord Davey at p. 633.

(2.) The principle of that decision, I believe, cannot be disputed.

(3.) The difficulty in the way of the applicants, however, is that the application is not correct in form. Part V of the Indian Companies Act, 1913, deals with the winding up of the companies and Secs.156 to 161 define the various kinds of contributories. The term contributory is defined in Section 158 as follows:- The term contributory means every person liable to contribute to the assets of a company in the event of its being wound up