Maha Maya General Finance Co. … vs Hardit Singh, Liquidator … on 28 January, 1972

JUDGMENT

M.R.A. Ansari, J.

(1) These two appeals are disposed of by a common judgment because they arise out of the same judgment of the District Judge, Delhi and because the points that arise for determination in both the appeals are identical.

(2) The respondent in both the appeals is a private limited company by the name of National Planners Limited represented by its voluntary liquidator Shri Hardit Singh Giani. The respondent Company was incorporated in 1946 under the Indian Companies Act, 1913 hereinafter referred to as the Act of 1913. One Doctor Roshan Lal Kapur was the Managing Director of the said company. The company went into voluntary liquidation on 26-10-1953 and Shri Hardit Singh Giani was appointed as voluntary liquidator. The company came under the supervision of the court on 26-3-1954. The voluntary liquidator filed an application dated 22nd September, 1964 against M/s B. Shahab-Ud-Din under Section 446(2)(b) and (d) of the Indian Companies Act, 1956 hereinafter referred to as the Act of 1956. This application was stated that Doctor Roshan Lal Kapur in his capacity as Managing Director of the Company had purchased some lands for and on behalf of the company of the extent of 5 bighas and 10 biswas in village Pasounda, Tehsil Ghaziabad, District Meerut and had got entries made in the revenue records in his personal name in respect of the said lands. Doctor Roshan Lal Kapur, however, gave a no objection certificate dated 11-6-1955, admitting that the lands which have been entered in his personal name in the revenue records really belong to the company and that he had no objection for the correction of the entries in the revenue records. Subsequently however. Doctor Roshan Lal Kapur sold the said land to Maha Maya General Finance Company Private Ltd. In the land thus sold to Maha Maya General Finance Company M/sB.Shahab-Ud-Din had constructed a pacca wall and was refusing to remove the said wall inspite of oral and written requests made by the voluntary liquidator. M/s B. Shahab-Ud-Din and Company had no legal right to encroach upon the land. It was, therefore, prayed that M/s B. Shahab-Ud-Din and company may be ordered to vacate the land illegally occupied by them.

(3) The voluntary liquidator filed another application dated 30-9-1964 against Maha Maya General Finance Co. under section 446(b) and (d) of the Act of 1956. The averments made in the earlier application regarding the purchase of the land by Doctor Roshan Lal Kapur for and on behalf of the respondent company, the entries made in the revenue records in his personal name in respect of the said land, the giving of the no objection certificate by him and the subsequent sale by him of the same land to M/s Maha Maya General Finance Company were reiterated. It was further stated that the voluntary liquidator had moved the District Magistrate, Meerut for possession of the land illegally occupied by M/s Maha Maya General Finance Company and that the District Magistrate by his order dated 27-3-1962 had directed the Tehsildar, Ghaziabad to deliver possession of the land to the voluntary liquidator and that inspite of taking delivery of possession of the land M/s Maha Maya had build some roads on the land and would be making a garden in the name and style of Ram Parkash Gardens and that M/s Maha Maya had also sold a portion of the said land to M/s B. Shahab-Ud-Din and Company. It was, therefore, prayed that M/s Maha Maya and M/s B. Shahab-Ud-Din be directed to vacate the illegal occupation of the land.

(4) The voluntary liquidator also filed an application dated 7-10-1964 under Section 477 of the Act of 1956 requiring the court to summon and examine Doctor Roshan Lal Kapur, M/s Maha Maya General Finance Company Private Limited and Shri B. Shahab-Ud-Din. A similar request was made in respect of Yash Paul Chadha, who was said to be in possession of some of the land belonging to the respondent company.

(5) Subsequently, the voluntary liquidator filed an application dated 30-9-1965 against Yash Paul Chadha under Section 446(2)(b) and (d) of the Act of 1956. In this application, it was stated that Suit No. 770 of 1963 had been filed by the voluntary liquidator against Yash Pal Chadha in the court of the Munsiff, Ghaziabad, that an order had been passed by the District Judge, Delhi, under Section 446(3) of the Act of 1956 transferring the said suit to his court, that owing to some difficulties the said suit instead of being transferred was withdrawn by the voluntary liquidator, and that the copies of the plaint and written statement in the said suit were being filed, as part of the petition under Section 446(2). It was further stated that respondent company had purchased some land of the extent of 9 biswas, 10 biswanis plus 8 biswas plus one bigha and 10 biswas in village ” Parounda, that possession of the said land was obtained by the respondent company under the orders of the Additional District Magistrate, Meerut dated 31st May, 1962 and that inspite of the said orders, Shri Yash Paul Chadha continued to be in illegal possession of the said land. It was, therefore, prayed that Shri Yash Paul Chadha may be directed to vacate his illegal possession of the said land.

(6) Notice in all the above applications were issued to Dr. Roshan Lal Kapur, M/s Maha Maya General Finance Private Limited, M/s B. Shahab-Ud-Din and company and Shri Yash Paul Chadha and all these parties appeared before the Learned District Judge and filed their respective replies and it will be necessary only to give a gist of their replies at this stage. Doctor Roshan Lal Kapur stated that the land which he had sold to M/s Maha Maya General Finance Private Limited was not the same as the land which he had purchased for and on behalf of the respondent company. He was in possession in his own right of the land which he had sold to M/s Maha Maya General Finance Private Limited and had acquired bhumidari rights in respect of the same under the U.P. Zamindari Abolition Act, 1952 and that he had sold his bhumidari rights in respect of the said land to M/s Main Maya General Finance Private Limited. M/s Maha Maya General Finance Private Limited also took the same position and in addition stated that as the name of .Doctor Roshan Lal Kapur was entered in the revenue records as the bhumidari of said lands it had purchased the bhumidari rights in respect of the said lands and it was, therefore, in a position of a bonafide purchaser for consideration of property from its ostensible owner. M/s B. Shahab-Ud-Din and company in its reply stated that it had nothing to do with the land in question and that the land belonged to and was also in the possession of one of its partners namely Shri Shahab-Ud-Din and further that Shri Shahab-Ud-Din was in possession of the said land in his own right and not under any sale deed executed by M/s Maha Maya General Finance Private Limited. Shri Yash Paul Chadha claimed that he was in rightful possession and enjoyment of the land in his own right and that his name also was entered in the revenue records as the rightful occupant of the said land and that bhumidari rights had also been granted to him in respect of a portion of the said land.

(7) Oral and documentary evidence was led before the learned District Judge by all the parties concerned. On a consideration of the said evidence, the learned District Judge held that the respondent company was the rightful owner of the lands which were in possession of M/s Maha Maya General Finance Private Limited as well as of Shri Yash Paul Chadha and directed them to deliver possession of the said lands to the voluntary liquidator. As regards the claim against M/s B. Shahab-Ud-Din and Company, the learned District Judge directed the voluntary liquidator to file a regular suit against him as in his view, the questions involved were too complicated to be decided in summary proceedings under Section 446(2) of the Act of 1956. M/s Maha Maya General Finance Private Limited and Shri Yash Paul Chadha have filed the present appeals against the said order of the Learned District Judge. These will be hereinafter referred to as the first appellant and the second appellant respectively.

(8) Shri H. R. Sawhney, the learned counsel for the respondent company has raised certain preliminary contentions regarding the maintainability of these two appeals. As regards the appeal filed by the first appellant, he has raised the following objections :-    (I)The appeal was incompetent as no resolution was passed by the first appellant company authorising the filing of the appeal; (ii) the permission of the District Judge was not obtained under Section 446 of the Act of 1956 for filing the appeal; (iii) a certified copy of the judgment of the learned District Judge was not filed along with the appeal; (iv) the appeal was not filed against the National Planners Limited as such but only against the voluntary liquidator Shri Hardit Singh Giani; and (V) the appeal has abated as the legal representatives of Doctor Roshan Lal Kapur (deceased) were not brought on record within time.  

(9) So far as the appeal filed by the second appellant is concerned, only the following objections were raised:-    (I)The permission of the District Judge under Section 446 of the Act of 1956 for filing the appeal was not obtained, and (ii) Certified copy of the judgment of the District Magistrate was not filed along with the appeal.  

(10) As regards the first objection against the maintainability of the appeal filed by the first appellant, it is to be noted that the memorandum of appeal is signed by Shri S. Watal, advocate and the power of attorney, authorising the said advocate to file the appeal is signed by Shri Deep Chand, Managing Director of the first appellant company. The said Deep Chand had also signed the reply in the court of the District Judge, to the petition filed under Section 446(2)(b) and (d) of the Act of 1956. Shri Deep Chand has filed an affidavit dated 5-5-1971 in this court to the effect that he was the Managing Director of the first company, that by virtues of the articles of association of the company, he was vested with the powers to carry on the management of the affairs of the company on behalf of the board of Directors of the company and was as such fully authorised to defend all actions and proceedings against the appellant company and to prosecute and file appeals etc. in respect of the causes in which the appellant company was interested. A copy of the Memorandum of Association of the first appellant company has also been filed and under article 13 of the said Memorandum of Association “the management of affairs of the company shall vest in the Board of Directors and in the Chairman, Managing Director and Joint Managing Director shall carry on the management of affairs of the company on behalf of the Board and subject to control, supervision and direction of the Board of Directors carry on the administration in such a manner as may from time to lime be directed to them”.

(11) The learned counsel for the respondent company contends that without a resolution of the Board of Directors of the first appellant company, Shri Deep Chand, its Managing Director had no authority to file the appeal. Reference in this connection is made to Section 46 and 291 of the Act of 1956 and to a decision of this court in M/s. Oberai Hotels India Private Limited v. M/s Observer Publications Private Limited S. No. (469 of 1966 decided on November 26, (1968) and reported in 1969(3) Delhi High Court Notes, Note No. 3. Section 46 refers to contract made on behalf of company and can have no application to the contention raised by the learned counsel. Section 291 refers to the powers of the board of directors. This Section cannot have application to the contention raised by the learned counsel because it is not disputed that the board of Directors has the power to institute the present proceedings and also to authorise Shri Deep Chand to do so. The question is whether in the absence of a resolution by the Board of Directors, authorising Shri Deep Chand to file the appeal, the latter could file the appeal. It is no doubt true that no resolution of the Board of Directors, authorising Shri Deep Chand to file the present appeal has been placed on record. As no such resolution has been placed on record, the decision of this court referred to by the learned counsel will not advance his case any further because all that was held in that case was that a resolution which “merely authorised a particular person to sign all papers, petitions, plaints, written statements, affidavits and any other document or documents that may be required in this connection in all courts of jurisdiction did not authorise the said person to institute the suit or to appoint an agent or lawyer for the purpose of presenting the plaint on behalf of the company.” It is further contended on behalf of the first appellant company that Shri Deep Chand in his capacity as the Managing Director of the company was vested with the power under the Articles of Association of the company to file the appeal. It is not disputed that Shri Deep Chand was the Managing Director of the company at the time of the filing of the appeal. Under Article 13 which has already been quoted, the Managing Director had the authority to carry on the management of the affairs of the company on behalf of the Board. In H. M. Ebrahim Sait v. South India Industrials Ltd. Air 1938 Madras 1962,2 a division bench of the Madras High Court has held that managing the business of the company includes the institution of suits on its behalf. The learned Chief Justice of that court, who spoke for the court observed “it appears to us that managing the business of the company would include institution of suits as well, when it becomes necessary in the course of management to recover moneys due to the company.” Further Shri Deep Chand had filed a reply on behalf of the first appellant company before the learned District Judge contesting the application filed by the voluntary liquidator under Section 446(2) of the Act of 1956. No objection was raised at that stage that Shri Deep Chand had no authority to file the reply and to contest the petition. The present appeal is only a continuation of the proceedings before the learned District Judge. If Shri Deep Chand had the authority to contest the claim of the respondent company before the learned District Judge he must be deemed to have the authority to contest the said claim by filing the present appeal. This objection namely that Shri Deep Chand had no authority to file the present appeal cannot, therefore,be accepted.

(12) In support of the second objection namely that the present appeal filed by the first appellant was not maintainable without the permission of the District Judge under Section 446(1) of the Act of 1956, the learned counsel refers to Sub-section (1) of Section 446 and also to a decision of the Allahabad High Court in B. Maharaj Kishore Khanna v. Benares Bank Mr 1941 Allahabad 335. Under Sub-section (1) of Section 446(2) no suit or other legal proceedings shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Court and subject lo such terms as the Court may impose.” The decision of the Allahabad High Court referred to was under Section 171 of the Act of 1913 which correspond it to Sub-section (1) of Section 446 of the Act of 1956. In that case it was held that since the appeal was a proceeding within Section 171, it was not valid and effective as it was instituted without leave under Section 171. The scope of Section 171 of the Act of 1913 and of Sub-section (1) of Section 446 of the Act of 1956 would be clear if the facts of the case before the Allahabad High Court are stated. In that case, the appellant had filed a suit against the Benares Bank Ltd. and in that suit a decree was passed in favor of the said bank. The appellant being dis-satisfied with the amount decreed filed an appeal against it. Before the appeal was filed, the bank had gone into liquidation, Therefore, the appellant filed an application before the court which also happened to be the winding up court, for leave to continue the appeal. It was held that the said application could not be construed as an application to continue as subsisting appeal but only an application to commence an appeal. Leave to commence was however refused on the ground that the application was barred by limitation. In that connection it was observed that “leave to commence a suit given under the Companies Act or under one of the Insolvency Act as the case may be where such leave is granted after the period of limitation, have the effect of reconstituting the valid suit.” It would be thus clear that a suit had been filed against a bank in the first instance and when the suit did not result in favor of the appellant, the latter filed the appeal. If the bank was under liquidation at the time suit was filed, obviously the leave of the winding up court would be necessary before filing the suit. For the same reason, the leave of the winding up court was necessary for filing the appeal if at the lime of the filing of the appeal, the bank was in liquidation. The facts of the case before the Allahabad High Court are clearly distinguishable from the facts of the present case because in the present case, it was the company liquidation which had itself through its voluntary liquidator commenced the proceedings. It is not disputed that the leave of the winding up court was not required for contesting the proceedings instituted by the company in liquidation. The position cannot be different when the claim of the company in liquidation is contested by continuing the proceedings in appeal. There is a direct decision on this point of the ” full bench of the Allahabad High Cour itself in Rahmat Ali Fatehullah v. Calcutta National Bank Ltd. . The position was explained in the following words by Mali C.kJ., who spoke for the full bench :- “IF a person wants to file a suit to escape liability on the ground that the company’s claim against him is unfounded, it is a proceeding against the company, but where the company has started the proceeding, that is, put forward its claim in a court of law, any remedy available by way of defense to escape liability, which the company wants to fasten on him. should not be deemed to be a proceeding commenced or continued against the company and in such a case the question, whether the claim was put forward or the suit was filed by the company before or after the winding-up order, should make no difference.”

(13) It was further observed “But where a company has initiated a proceeding in a court of law whether before or after the winding-up order, no permission of the Company Judge should be needed for anything done by the defendant or the opposite party to escape the liability thus intended to be fastened on him.” The following observations of the learned District Judge clearly indicate that permission of the company court is not required for filing an appeal in continuation of the suit in which the appellant contested the claim of the company in liquidation. If, however, the company has instituted a suit or other proceedings to enforce the claim, any action taken by the defendant or the opposite party by way of defense, or if the company has obtained a decree of order, any defensive action by way of appeal, revision. review or setting aside of an ex parte decree or order should not require the permission of the Company Judge. The second objection based on the want of sanction of the winding up court for filing the present appeal, therefore, fails.

(14) The objection based upon the cause title of the appeal is not of much consequence. It is no doubt true that the respondent in the appeal should have been described as the National Planners Ltd. in liquidation through the voluntary liquidator Shri Hardit Singh Giani. But the fact that the respondent is described as Shri Hardit Singh Giani as liquidator National Planners Ltd. is not such a defect in the cause title as to justify the rejection of appeal on that sole ground. This objection, therefore, also fails.

(15) The next objection which is common to both the appeals is that no certified copies of the judgment of the learned District Judge were filed along with the appeal. Under Order 41 Rule I Civil Procedure Code the Memorandum of Appeal shall be accompanied by a copy of the decree appealed from and (unless the appellate court dispenses therewith) of the judgment on which it is founded. It is not disputed that the copy referred to in Order 41 Rule I Civil Procedure Code is a certified copy. The judgment of the learned District Judge is dated 8-3-1966. The appeal by the first appellant was filed on 15-4-1966 and the appeal by the second appellant was filed on 19-5-1966. Along with the appeals, applications were filed by both the appellants for exemption from filing certified copies of the judgment. No specific order was passed by the court at the time of admitting the appeals granting the exemption prayed for by the appellants, but the appeals were admitted. The first appellant applied to the District Judge on 15-3-1966 for grant of certified copy of the judgment and similarly the second appellant also applied to the District Judge on 18-3-1966 for the grant of a certified copy. It is not clear what happened to the application filed by the first appellant but the application filed by the second appellant was returned to him by the District Judge on 29-7-1966, with the endorsement that the file had been sent to the High Court. The second appellant then filed an application in the High Court on 22-9-1966. Copies were ready on 12-12-1966 and the certified copy of the judgment was filed in court on 15-12-1966, The first appellant did not file the certified copy of the judgment subsequent to the filing of the appeal. The first appellant has however, filed an application Cm 873 of 1971 on 23-7-1971 for dispensing with the filing of a certified copy of the judgment and for the appeal being heard without such copy being filed, in view of the fact that a certified copy of the judgment had already been filed by the second appellant in his appeal. Subsequent to the filing of this application i.e. on 6-8-71 the first appellant has actually filed a certified copy of the judgment in this court.

(16) The position, therefore, appears to be that applications were filed by both the appellants at the time of filing the appeals for exemption from filing certified copies of the judgment and as the appeals are admitted, it must be presumed that the exemption applied for was granted by the court. As the court did not fix any time limit for filing the certified copies of the judgment, the appellants cannot be restrained from filing the certified copies of the judgment at any time before the hearing of the appeals. So far as the second appellant is concerned, he must be deemed to have filed the certified copy of the judgment in time, if the time taken in obtaining certified copies is excluded. As already stated he applied for certified copies in the first instance on 18-3-1966. This application was returned on 29-7-1966. He thereafter applied to the High Court on 22-9-1966. The copies were ready on 12-12-1966 and the same were filed in the court on 15-12-1966. The period from 18-3-1966 to 29-7-1966 and again from 22-9-1966 to 12-12-1966 must be excluded. If this period is excluded, then the certified copies have been filed in time by the second appellant, and even if there is a delay of few days in filing the certified copies, the court would be justified in condoning the delay under the circumstances. So far as the first appellant is concerned, it is open to the court to grant either a total exemption from filing the copy of the judgment or to grant conditional exemption requiring him to file certified copy within a particular time. The judgment against which the first appellant has filed the appeals is the same judgment against which the second appellant has filed the appeal. Both the appeals have been heard together. Under the circumstances, the court would be justified in granting a total exemption in favor of the first appellant. In any case since the first appellant has in fact filed a certified copy of the judgment during the hearing of the appeal, the court will not be justified, in my view, in rejecting the appeal on the technical ground that the certified copy was not filed at an earlier stage. This objection against the maintainability of the appeals has, therefore, to the rejected.

(17) The last objection which is peculiar only to the appeal filed by the the first appellant is that it has abated by reason of the legal representatives of one of the parties to the appeal namely Doctor Roshan Lal Kapur not having been brought on record within time. Admittedly Doctor Roshan Lal Kapur died on 28-6-1967. If his legal representatives are not brought on record within 90 days, then the appeal against Doctor Roshan Lal Kapur automatically abates. Three applications were filed by the first appellant on 28-9-1970. Cm No. 1214 of 1970 was an application under Order 22 Rules 4 and Ii read with Section 151 Civil Procedure Code for bringing the legal representatives of Doctor Roshan Lal Kapur, respondent No. 2 on record. In this application. it was stated that Shri Hardit Singh, voluntary liquidator had informed the court on 15-9-1970 that Doctor Roshan Lal Kapur had died on 28-6-1967 and that it is only then that the first appellant came to know about the death of Doctor Roshan Lal Kapur. It was further stated that on receipt of this information, a request was made for an opportunity to file an application for bringing the legal representatives of Doctor Roshan Lal Kapur on record and the court granted time to the first appellant till 1-10-1970 for filing such an application. The names of the legal representatives were mentioned in the application and it was prayed that they may be brought on record as the legal representatives of Doctor Roshan Lal Kapur. Cm No. 1213 of 1970 was an application under Section 5 of the Limitation Act for condensation of the delay in filing the application Cm No. 1214 of 1970. in this application, it was stated that the first appellant did not have any knowledge about the death of Doctor Roshan Lal Kapur prior to 15-9-1970 when Shri Hardit Singh, liquidator informed the court of his death. It was further stated that the first appellant had no dealings with Doctor Roshan Lal Kapur after the transaction which was the subject matter of the appeal. Therefore, he had no opportunity of knowing about his death. Cm No. 1215 of 1970 is an application under Order 32 Rule 3 read with Section 151 Civil Procedure Code for the appointment of a Court Guardian for some of the legal representatives of Doctor Roshan Lal Kapur who were minors. Subsequently, on 7-10-1970. the first appellant filed two more applications. Cm No. 1246 of 1970 is an application under Order 22 Rules 9 and 11 Civil Procedure Code for setting aside the abatement of the appeal. In this application, it was stated that the first appellant came to know of the death of Doctor Roshan Lal Kapur only on 15-9-1970, under the circumstances already stated and that it took sometime for the first appellant to find out the names and addresses of the legal representatives of Doctor Roshan Lal Kapur and that, therefore, he could not file an application within time for bringing his legal representatives on record. Cm No. 1245 of 1970 is an application under Section 5 of the Limitation Act for condoning the delay in filing the application Cm No. 1246 of 1970. All the the above applications are opposed by the respondent company.

(18) Two questions arise for determination namely (1) whether the delay in filing the application for setting aside the abatement of the appeal and by reason of the death of Doctor Roshan Lal Kapur is liable to be condoned and (2) if the delay is not liable to be condoned, whether the appeal has abated only as against Doctor Roshan Lal kapur or whether it has abated against the respondent company also. It has to be noted that the present appeals have not arisen out of any regular suits, in which parties are arraigned on opposite sides as plaintiffs and defendants. Three separate applications were filed by the voluntary liquidator of the respondent company under section 446(2)(b) and (d) of the Act of 1956, one each against the first appellant, the second appellant and M/s. B. Shahab-Ud-Din and company. Doctor Roshan Lal Kapur was not imp leaded as a party in any of these applications. An application was filed under Section 151 Civil Procedure Code with a prayer that Doctor Roshan Lal Kapur may be directed to attend the court in person to watch his interest and defend himself as far as the provisions of Subsection (2) of Section 536 of the Companies Act were concerned. An application was also filed under Section 477 of the Act of 1956 requiring the private examination of Doctor Roshan Lal Kapur by the District Judge. In the applications filed by the voluntary liquidator against the appellants herein and against M/s. B. Shahab-Ud-Din and company, no relief was asked as against Doctor Roshan Lal Kapur. As a matter of fact, no relief was in fact granted by the learned District Judge as against Doctor Roshan Lal Kapur. It is only held that Doctor Roshan Lal Kapur did not hold any valid right in respect of the properties which were the subject matter of the dispute and that he did not pass any valid title in favor of the first appellant in respect of the said properties. The relief that was granted by the learned District Judge was only against the first appellant namely that he should deliver possession of the lands to the respondent company. It is against this order of the learned District Judge that the first appellant filed the appeal. Doctor Roshan Lal Kapur was not a necessary party to this appeal and the first appellant could very well have filed the appeal only against the respondent company. Doctor Roshan Lal Kapur was, therefore, a proforma respondent in the appeal. Even in the appeal, no relief was sought by the first appellant against Doctor Roshan Lal Kapur. Under these circumstances, even if the legal representatives of Doctor Roshan Lal Kapur are not brought on record and even if the appeal so far as he is concerned has abated, the appeal does not abate as against the respondent company. In Sant Singh v. Gulab Singh Air 1928 Lahore 572, the following tests were enunciated for determining whether an appeal abates as a whole or only against I he deceased respondent:- “WHETHER the appeal can or cannot proceed in the absence of the legal representatives of the deceased respondent must depend upon the nature of each case and it is possible to formulate a rule of general application. It is obvious that if the action which has given rise to the appeal could have been brought without impleading a person who has died, his death affects only the interest if any, which he had in the litigation, but it cannot prevent the determination of the rest of the claim. This rule does not, however, solve the problem in every case. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents, there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. It is matter of common sense that the court should not be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to such a result, there is no valid reason why the Court should not bear the appeal and adjudicate upon the dispute between the parties who are before it.”

(19) The same tests were applied by the Lahore High Court in a latter case namely Umaro Bibi Ram Kisan & ors. Air 1932 Lahore 281. Applying the above tests to the present case, I am of the view that the abatement of the appeal Dr. Roshan Lal Kapur will in no way effect the disposal of the appeal against the respondent company. There was no decree by the learned District Judge which was executable against Doctor Roshan Lal Kapur and, therefore, there is no question of such a decree remaining in force and leading to the passing of two contradictory decrees by this court.

(20) When the appeal has not abated as a whole, there would be no point in allowing the appeal to abate partially as against Doctor Roshan Lal Kapur under the circumstances of the present case. There is no conflict of interest as between the first appellant and Doctor Roshan Lal Kapur. The legal representatives of Doctor Roshan Lal Kapur to whom notice was issued of the application filed by the first appellant to bring them on record have filed replies that they have no objections to their being brought on record and that they do not oppose the claim of the first appellant in respect of the properties which are the subject matter of the appeal. If the legal representatives of Doctor Roshan Lal Kapur themselves have no objection to the abatement of the appeal being set-aside and to their being brought on record, it is certainly not open to the respondent company to oppose the applications filed by the first appellant. All these applications are, therefore, allowed and the legal representatives of Doctor Roshan Lal Kapur are brought on record and the appeal will proceed.

(21) Therefore, none of the preliminary objections raised by the learned counsel for the respondent company against the maintainability of the appeals is tenable and the appeals cannot be dismissed on any of these grounds.

(22) The first contention advanced on behalf of both the appellants is that the learned District Judge had no jurisdiction to entertain the applications filed by the voluntary liquidator of the respondent company under Section 446(2)(b) and (d) of the Act of 1956 or to grant the relief prayed for in the said applications by the respondent company in view of the provisions of Section 647 of the said Act. The learned counsel for the respondent company has objected to this contention being raised for the first time in this court without such an objection having been raised in the lower court. This objection has to be overruled as a contention regarding the jurisdiction of a court can be raised at any stage. According to the learned counsel for the appellants, the winding up of the respondent company having been started in 1953, all the proceedings in respect of the winding up of the company had to be taken under the Act of 1913 which did not contain any provision similar to sub-section (2) of Section 446 of the Act of 1956. Reference in this connection is made to Section 647 of the Act of 1956, the relevant portion of which is in the following terms:- “WHERE the winding up of a company as commenced before the commencement of this Act- (ii) The other provisions with respect to winding up contained in this Act shall not apply, but the company shall be wound up in the same manner and with the same incidents as if this Act had not been passed.”

(23) On the other hand, it is contended by the learned counsel for the respondent company firstly that the applications filed by the respondent company under Section 446(2)(b) and (d) of the Act of 1956 are not in respect of the winding up of the company and secondly that Section 647 is subject to the provisions of sub-section (2) of Section 446 of the Act of 1956 which were enacted by the Amending Act of 1960. Therefore, the questions that arise for determination at this stage are (i) whether the applications filed by the respondent company before the learned District Judge were in respect of the winding up of the company and (ii) what is the scope of Sections 647 vis-a-vis sub-section (2) of Section 446 of the Act of 1956.

(24) Section 446 occurs in Chapter Ii of the Act of 1956 which bears the heading “Winding up by the court”. This Chapter starts with Section 433 and ends with Section 483. It is no doubt true that Chapter Ii applies to the winding up of the companies by the court whereas the case of the respondent company was one of voluntary winding up and Chapter Iii of the Act of 1956 specifically applies to cases of the voluntarily winding up of the companies. But as soon as a company which is voluntarily wound up comes under the supervision of the court under sub-section (2) of Section 526 of the Act of 1956. the court shall have full authority to exercise all other powers which it might have exercised if an order had been made for winding up of the company altogether by the court. The process of winding up comes to a close only when the company is dissolved under Section 481 of the Act of 1956. The proceedings for the winding of the company consist essentially of the collection of all the assets of the company and of their equitable distribution amongst the share holders and the creditors of the company. The provision of Sub-section (2) of Section 446 are meant for enabling the court to collect the assets of the company and to distribute them equitabaly amongst their creditors and share holders.

(25) The company Court Rules 1959 framed by the Supreme Court under Section 643 of the Act of 1956 also give an indication of the scope of the winding up proceedings. Rules 95 to 338 are the relevant rules and these rules occur in Part Iii of the Rules which bears the main heading “Winding Up”. Rules 117, 118 and 119 correspond to the provisions of Sub-section (2) of Section 446 of the Act of 1956. Under Rule 284 the winding up of a company shall be deemed to be included (a) in the case of a company wound up by an order of a court, at the date on which the order dissolving the company has been reported by the liquidator to the Registrar of Companies; (b) in the case of a company wound up voluntarily or under the supervision of a court, at the date of the dissolution of the company, unless on such date any funds or assets of the company remained unclaimed or undistributed in the hands or under the control of the liquidator or any person who has acted as liquidator, in which case the winding up shall not deemed to be concluded until such funds or assets have either been distributed or paid into the company’s liquidation account in the Reserve Bank of India. On the basis of the above provisions of the Act of 1956 and of the rules framed there under, I am of the view that the applications filed by the respondent company before the learned District Judge under Section 446(2) of the Act of 1956 relate to the winding up of the company.

(26) As the applications filed by the respondent company under Section 446(2) of the Act of 1956 were in respect of the winding up of the company, by virtue of Section 647 they have to be disposed of under the provisions of the Act of 1913 and not under the provisions of the Act of 1956. There were no provisions in the Act of 1913 analogous to the provisions of sub-section (2) of Section 446 of the Act of 1956. Therefore, the applications filed by the respondent company could not be disposed of by applying the provisions of sub-section (2) of Section 446 of the Act of 1956. It would, therefore, follow that the learned District Judge had no jurisdiction to entertain the said applications and to dispose them of under sub-section (2) of Section 446 of the Act of 1956. This view is supported by the decision in the case of A. Ananthasubramonia Ayyar v. The Official Receiver, Sitaram Spinning & Weaving Mills Ltd. (AIR 1957 Trav-Co. 51).(“) The question for consideration in that case was whether Section 10 of the Act of 1956 was applicable to the liquidation proceedings which have been commenced before the coming into force of the Act of 1956. If the provisions of the Act of 1913 were applicable then the liquidation proceedings could be continued by the district court. But if the provisions of the Act of 1956 were applicable then such proceedings could be continued only in the High Court. It was held that with regard to the pending proceedings dealing with liquidation of companies, Section 10(2)(b) will not apply and the jurisdiction of the District court with regard to the said proceedings cannot be challenged on the basis of the provisions of the aforesaid sub-section.

(27) The learned counsel for the respondent company however, contended that Section 647 of the Act of 1956 is controlled by sub-section (2) of Section 446 which was enacted by the Amending Act of 1960 and that Section 647 applies only to such cases to which sub-section (2) of Section 446 does not apply. According to the learned counsel, the non-obstante clause in sub-section (2) of section 446 “notwithstanding anything contained in any other law for the time being in force” includes Section 647 also. In support of this contention, the learned counsel seeks to rely upon a decision of the Supreme Court in Ashwini Kumar Ghosh and another v. Arabinda Bose and another (1953 Supreme Court Report l). That was a case under Section 2 of the Supreme Court Advocates (Practice in High Courts) Act 1951 which was to the following effect:-

“NOTWITHSTANDING anything contained in the Indian Bar Councils Act, 1926 (XXVII of 1926). or any other law regulating the conditions subject to which a person not entered in the roll of advocates of a High Court may be permitted to practise in that High Court every advocate of the Supreme Court shall be entitled as a right to practise in any High Court whether or not he is an advocate of that High Court.”

“PROVIDED that nothing in this Section shall be deemed to entitle any person, merely by reason of his being an advocate of the Supreme Court, to practise in any High Court of which he was at any time a Judge if he had given an undertaking not to practise therein “after ceasing to hold office as such.”

(28) On a construction of this section, it was held by the majority of the Judges that the non-obstante clause in Section 2 can reasonably be read as over-riding anything contained in any relevant existing law which is inconsistent with the new enactment and that Section 2 conferred upon an advocate of the Supreme Court the right to practise in any-High court including on the original side thereof and that a rule made by the High Court which denies to an advocate a right to exercise essential part of this function by insisting on a dual agency on the original side is much more than a rule of practise and constitutes a serious invasion of his statutory right to practise and the power of making such a rule unless expressly reserved (as it was reserved by the Bar Council Act) would be repugnant to the right conferred under Section 2. I cannot say how the rule laid down in this case can be applicable to support the contention of the learned counsel. The non obstante clause under Section 2 of the Supreme court Advocates (Practice in High Courts) Act of 1951 was not interpreted by the Supreme Court as to include other provisions of the said Act. The non-obstante clause was held to be applicable to laws other than the said Act. Whenever a non obstante clause is intended to apply to the other provisions of the same Act, then it is usual to find the words “not- 17 withstanding anything contained in this Act” in the non-obstante clause. Such words do not appear in the non-obstante clause in sub-section (2) of Section 446. Further the Amending Act of 1960 by which sub-section (2) of Section 446 was introduced in the Act of 1956 amended Section 647 also by introducing sub-section (2) of that section, but left sub-section (1) untouched. Therefore, I cannot construe the non-obstante clause in sub-section (2) of section 446 so as to apply to Section 647 also. In other words, I cannot subscribe to the view that notwithstanding the provisions of Section 647, proceedings in respect of winding up of a company which fall within the scope of sub-section (2) of Section 446 would be governed by the said provisions of the Act of 1956 and not by the provisions of the Act of 1913. I would, therefore, hold that the learned District Judge had no jurisdiction to entertain the applications filed by the respondent company under Section 446(2), of the Act of 1956 and to dispose them of in exercise of his powers under sub-section (2) of Section 446. The order of the learned District Judge which is impugned in the present appeals is, therefore, void as being beyond his jurisdiction.

(29) The jurisdiction of the District Judge to entertain and dispose of the applications filed by the respondent company is challenged on another ground also, namely, that the questions which the learned District Judge was called upon to determine and the relief which the respondent company claimed fell within the exclusive jurisdiction of the courts specified under the U.P. Zamindari Abolition and Land Reforms Act 1950 (hereinafter referred to as “the U.P. Act”) and that the District Judge had no jurisdiction to determine such questions or to grant such reliefs. A reference is made to Section 331 of the U.P. Act the relevant portions of which are in the following terms:- “331.(1) Except as provided by or under the Act, no court other than a court mentioned in column 4 of Schedule Ii shall, not withstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof, or of a suit, application or proceeding based on a cause of action in respect of which any relief could be obtained by means of any such suit or application : Explanation :-If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.”

(30) Two questions arise for determination, namely, (1) whether the applications filed by the respondent company come within the scope of Schedule Ii of the U.P. Act, and (2) whether Section 331 of the U.P. Act is subject to the special jurisdiction of the company court under sub-section (2) of Section 446 of the Act of 1956.

(31) So far as the claim of the respondent company against the first appellant is concerned, the case of the respondent company was that Doctor Roshan Lal Kapur, its Managing Director, had purchased the land for and on behalf of the respondent company, but had caused entries to be made in his own name in the revenue registers in respect of the said land and that he had also obtained bhumidari rights under the U.P. Act in respect of the said land on the basis of a false claim that. he was himself the owner of the land and further that he had illegally sold the said land to the first appellant. It was the case of the respondent company that Roshan Lal Kapur was not the rightful owner of the said land and, therefore, bhumidari rights were wrongly granted to him. The respondent company, therefore, asked for a declaration that Roshan Lal Kapur was not the rightful owner of the land and was not the rightful bhumidar of the said land and that the first appellant did not get any valid title to the said land under the sale executed by Doctor Roshan Lal Kapur. The respondent company also asked for a declaration that the first appellant was in illegal possession of the said land and wanted an order from the District Judge directing the first appellant to deliver possession of the said land to the respondent company. On the other hand, the case of the first appellant as well as that of Doctor Roshan Lal Kapur was that the latter was in possession of the land in his own right and that the latter had also acquired bhumidari rights under the U.P. Act in respect of the said land and had also obtained a bhumidari certificate from the Revenue court under the U.P. Act and that the bhumidari rights in respect of the said land had been validly transferred by Doctor Roshan Lal Kapur lo the first appellant.

(32) So far as the applications filed by the respondent company against the second appellant is concerned, the case of the respondent company was that it had purchased certain land from its rightful owner under registered sale deed and that the said land had been occupied unlawfully by the second appellant and that in spite of an order of the Additional District Magistrate delivering the possession of the said land to the respondent, the second appellant continued to be in illegal occupation of the said land. The respondent company, therefore, wanted a declaration that it was the lawful owner of the land and was entitled to possession thereof and that the court should order the second appellant to deliver possession of the land to the respondent company. The case of the second appellant, on the other hand, was that he was in cultivatory possession of the said land on the date of the coming into force of the U.P. Act and that he had acquired the rights of an Adivasi in respect of a portion of the said land, the rights of a Sadar in respect of another portion of land bhumidari rights in respect of a third portion of the land under the U.P. Act, and that he had obtained certificates from the Revenue courts recognising his rights as Adivasi, Sadar and Bhumidar of the said land.

(33) It would, therefore, appear that the learned District Judge before passing an order directing the appellants to deliver possession to the respondent company of the lands in their possession, had to determine the question whether the appellants acquired any valid rights under the U.P. Act and whether the certificates obtained by the appellants recognising them as Adivasi, Sadar or Bhumidar of the land as the case may be were validly granted under the Act. As a matter of fact the learned District Judge has determined these questions and although he has not in so many words cancelled the certificates granted to the appellants by the Revenue courts, the effect of his order directing the appellants to deliver possession of the land to the respondent company was to treat the certificates granted to the appellants as cancelled. The applications filed by the respondent company before the District Judge would in substance amount to applications under Section 137(A) of the U.P. Act which is in the following terms :- “137-A.Cancellation of certificate- – (1) A certificate granted under Section 137 may, on the application of the State Government or any person interested, be cancelled or modified by the Assistant Collector for any of the following reasons, namely- (a) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Assistant Collector of something material to the case; (b) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; (c) that a decree or order passed by a competent court in a suit or other proceeding with respect to the holding for which certificate has been granted shows that the applicant was not entitled to the certificate.”

Sub-section (d)(2) of Section 137-A is not relevant.

(34) Even if the applications filed by the respondent company do not strictly fall within the scope of Section 137-A of the U.P. Act, still in fact they were applications based on a cause of action in respect of which relief could be obtained by means of such suit or application. In any case the applications filed by the respondent company fall with the scope of the explanation to Section 371 inasmuch as the cause of action on which the application is based was one in respect of which relief could have been granted by the revenue court under the U.P. Act.

(35) The application filed by the respondent company also fall within the scope of Section 209 of the U.P. Act which is in the following terms :-    "209.Ejectment of persons occupying land without title.- (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force- (a) where the land forms part of the holding of a bhumidar, sadar or asami without the consent of such bhumidar, sadar or asami; (b) where the land does not form part of the holding of a bhumidar or asami without the consent of the Gaon Sabha. (c) shall be liable to ejectment on the suit, in cases referred to in clause (a) above, of the bhumidar, sadar or asami concerned, and in cases referred to in clause (b) above of Gaon Sabha and shall also be liable to pay damages."  

Sub-section (2) of Section 209 is not relevant.  
 

(36) Although in the present case the respondent company was not recognised as a bhumidar, sadar or asami of the land in dispute, still the applications were filed on the basis that the respondent company was the rightful bhumidar of the said land and that the appellants were in illegal possession of it. The applications filed by the respondent company against the appellants thus fell within the scope of Section 331 of the U.P. Act and such applications could be taken cognizance of only by the revenue court under the U.P. Act and a civil court had no jurisdiction to take cognizance of such applications.  
 

(37) In Hatti v. Sunder Singh, 1970(2) Supreme Court Cases 841(8), the Supreme Court had occasion to deal with the question of jurisdiction of a civil court, vis-a-vis, the jurisdiction of a revenue court under the Delhi Land Reforms Act of 1954, the relevant provisions of which were similar to the relevant provisions of the U.P. Act. Section 185(1) of the Delhi Land Reforms Act is as follows :-    "185.(1) Except as provided by or under this Act, no court other than a court mentioned in Column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof."  

(38) It may be noticed that Section 331 of the LJ.P. Act while being similar to Section 185(1) of the Delhi Land Reforms Act is, however, much wider in scope by virtue of the explanation to Section 331. In the case before the Supreme Court, the appellant was declared a bhumidar of the land in dispute by the revenue court and the respondent filed a suit in a civil court claiming three reliefs. The first relief claimed was for a declaration that the declaration of a bhumidari issued in the name of the appellant with respect to the land in dispute was wrong, illegal, without jurisdiction, ultra vires, void and ineffective against the respondent. The second relief was that the respondent be declared entitled to Bhumidari rights under Section Ii of the Act; and the third relief was for possession of the land. The trial court held that the respondent was the proprietor of the land, but no declaration could be granted that he became Bhumidar under Section 11 of the Act, as that relief could only be granted by the revenue authorities under the Act. It was, however, held that he was entitled to possession in exercise of his right as proprietor, so that a decree for possession was granted in his favor. On consideration of the relevant provisions of the Delhi Land Reforms Act, the Supreme Court held that the civil court had no jurisdiction to try the suit. The following observations of the Supreme Court explained the reason for the finding given by the Supreme Court:-    "THE learned counsel appearing for the appellant took us through the various provisions of the Act to show that the Act is a complete Code which lays down the rights that any person can possess in agricultural land in the area to which the Act applies, and the remedies that can be sought in respect of such land for obtaining declaration of their rights or any other declaration for possession. ........................................ The effect of Sections 6 and 13 was that, thereafter, tenants and sub-tenants or lessees under the Bhoodan Yagna Act, 1955, ceased to continue as such, and either became Bhlimidars or a asamis in respect of their holdings. Similarly, under Section 11, proprietors in respect of their Sir and Khudkasht land became Bhumidars....................................... ........................................................ Sections 6, Ii, 13 and 154 of the Act read together, thus, show that, after the Act came into force, proprietors of agricultural land as such ceased to exist. If any land was part of a holding of a proprietor, he became a Bhumidar of it. If it was part of a holding of some other person, such as a tenant or a sub-tenant etc., he became either a Bhumidar or an Asami, whereupon the rights of the proprietor in that land ceased.. ..... It appears that it was in view of this scheme of the Act that, under Section 84, the right to institute a suit for possession was granted only to a Bhumidar, or an Asami, or the Gaon Sabha. The Act envisaged only these three classes of persons who would possess rights in agricultural land after the commencement of the Act, Proprietors as such having ceased to exist could not, therefore, institute a suit for possession..................... The jurisdiction of the civil court is clearly barred by Section 185 of the Act read with the various items of the first schedule mentioned above. If a Bhumidar seeks a declaration of his rights, he has to approach the Revenue Assistant by an application under item 4. .......................................... So far as suits for possession are concerned, we have already held earlier that section 84, read with item 19 of the First Schedule gives the jurisdiction, to the Revenue Assistant to grant decree for possession, and that the suit for possession in respect of agricultural land, after the commencement of the Act, can only be instituted either by a Bhumidar or an Asami or the Gaon Sabha. There can be no suit by any person claiming to be a proprietor, because the Act does not envisage a proprietor as such continuing to have rights after the commencement of the Act."  

(39) The Supreme Court rejected the contention that questions of title could competently be agitated by a suit in a civil court, as the jurisdiction of the civil court was not barred. Referring to Section 186 of the Delhi Land Reforms Act, the Supreme Court observed “that questions of title will arise before the Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a competent proceeding pending in a Revenue Court, an issue will be framed and referred to the Civil Court. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itself on a question of title. The jurisdiction of the Civil Court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that, if a question of title is raised in an application for declaration of Bhumidari rights under Item 4 of schedule I of the Act, that question will then be referred by the Revenue Assistant to the Civil Court; but a party wanting to raise such a question of title in order to claim Bhurnidari right cannot directly approach the civil court.”

(40) The above observations of the Supreme Court, in my view, are applicable to the present case in view of the fact that the relevant provisions of the Delhi Land Reforms Act and the U.P. Act are similar and these observations in my view negative the contention urged on behalf of the respondent company that the applications filed by it before the District Judge involve pure questions of title which are within the jurisdiction of a civil court. The observations of the Supreme Court will also, in my view, bring the applications filed by the respondent company within the scope of Section 209 of the U.P. Act although these applications were not filed by the respondent company as the Bhumidar or the land in dispute.

(41) The learned counsel for the respondent company has raised the contention that the lands in dispute did not come within the definition of “land” under Sections 3, (14) of the U.P. Act inasmuch as the lands in question were not held or occupied for purposes connected with agriculture etc. but were lands held for non-agricultural purposes, namely, building site and, therefore, the applications filed by the respondent company in respect of such non-agricultural land did not come within the scope of the U.P. Act. I am unable to accept this contention. The purpose for which the U.P. Act was passed was “to provide for the abolition of the Zamindari system which involves intermediaries between the tiller of the soil and the State in the Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provisions for other matters connected therewith.” Under sub-section (2) of Section I of the U.P. Act, it extended to the whole of the Uttar Pradesh Municipal areas specified in the sub-section. Section 4 of the U.P. Act provided that “as soon as may be after the commencement of this Act, the State Government may, by notification declare that, as from a date to be specified, all estates situate in the Uttar Pradesh vest in the state and as from the beginning of the date so specified (hereinafter called the date of vesting)., all such estates shall stand transferred to and vest except as hereinafter provided, in the State from all encumbrances.” Under Section 6 of the said Act, “when the notification under Section 4 has been published in the Gazette then notwithstanding anything contained in any contract or documenter in any other law for the time being in force and save as otherwise provided in this Act, the consequence as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely, (a) all rights, title and interest of all the intermediaries-(i) in every estate including land (cultivable or barren)……………….,….” shall cease and be vested in the Uttar Pradesh free from all encumbrances.”

(42) From the above provisions, it is clear that all lands whether agricultural or non-agricultural except those referred to in Sections I and ” 2 vest in the Government from the date of the notification and thereafter the several rights in respect of such lands are determined in accordance with the provisions of the said Act. In respect of agricultural land the rights of Asami, Sadar or Bhumidar may be acquired by persons who satisfy the requirements of the relevant provisions of the Act. Non-agricultural land, does not, however, fall outside the scope of the Act. Such land also vests in the Government and the proprietors of the land is entitled only to receive compensation from the Government in respect of the same. The question whether a particular land is agricultural or non-agricultural has to be determined by the Revenue Courts under the U.P. Act because such a question has to be determined before recognising the rights of the persons concerned in respect of such land. Secondly, the lands in dispute were described as agricultural lands not only in the revenue records, but also in the sale deeds under which the respondent company purchased the said lands. The lands were their agricultural lands on the date of the coming into force of the U.P. Act. These lands cannot cease to retain such character of agricultural land by reason only of the fact that the lands were purchased by the respondent company for non-agricultural purposes, namely for building sites. There is no evidence that the date of the coming into force of the U.P. Act the respondent company had taken any steps to convert the said land into building sites. Therefore, I cannot accept the contention urged on behalf of the respondent company that the lands in dispute fail outside the purview of the U.P. Act.

(43) The next question that arises for consideration on this aspect of the case, is whether the company acting under section 446(2) of the Act of 1956 gets special jurisdiction to determine questions which would ordinarily come within the jurisdiction of the Revenue Courts under the U.P. Act. This question would not really arise in view of my finding that sub-section (2) of Section 446 of the Act of 1956 will not apply by virtue of Section 647 of the said Act. If the applications filed by the respondent company were in respect of the winding up of the respondent company, then the applications have to be disposed of under the provisions of the Act of 1913 which did not contain provisions similar to sub-section (2) of Section 446 of the Act of 1956. Under the Act of 1913 the company court did not have jurisdiction to determine questions which properly arise under the U.P. Act even in the case of companies in liquidation. But assuming for a moment that the provisions of Section 446(2) of the Act of 1956 were applicable, the question arises whether the company court gets special jurisdiction even in matters which ordinarily fall within the jurisdiction of the Revenue Courts under the U.P. Act. There is no direct authority on this point, but guidance may be taken from a decision of the Supreme Court under the Life Insurance Corporation Act, namely, Damji Valji Shah and another v. Life Insurance Corporation of India and others, (A.1.R. 1966 Supreme Court 135).(“) The Life Insurance Corporation filed an application under Section 15 of the Life Insurance Corporation Act before the Tribunal constituted under the said Act challenging the transfer of a certain amount by a life insurance company from the life fund to the general department. That application was contested inter aha on the ground that the Tribunal had no jurisdiction to proceed with the application presented by the Life Insurance Corporation in view of Section 446 of the Act of 1956 and in view of Section 44 of the Lic Act. Section 17 of the Lic Act provided for constitution of Tribunals which were empowered by sub-section (4) to regulate their own procedure and decide all matters within their competence. Sub-section (2) of Section 15 of the said Act empowered the Tribunal to make such order against any of the parties to the application as it thought just having regard to the extent to which those parties were respectively responsible for the transaction or benefited from it and all the circumstances of the case. Section 41 provided that no civil court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act. Section 44 inter alia provided that nothing contained in the Act would apply in relation to any insurer whose business was being voluntarily wound up or was being wound up under orders of the court. The Supreme Court held that in view of Section 41 of the Lic Act the company court has no jurisdiction to entertain and adjudicate upon any matter which the Tribunal is empowered to decide or determine under that Act. As it was not disputed that the Tribunal had jurisdiction under the Act to entertain and decide matters raised in the petition filed by the Corporation under Section 15 of the Lic Act, the Supreme Court held that provisions of sub-section (1) of Section 446 of the Companies Act will not operate on the proceedings which commenced before the Tribunal or which may be sought to be commenced before it. The Supreme Court further observed that the provisions of the said Act, that is, the Lic Act will override the provisions of the general Act viz., the Companies Act which is an Act relating to companies in general. The Supreme Court also held that Section 44(a) of the Lic Act did not apply as the company was not being wound up under orders of the court on July 1, 1956 when the Lic Act came into force. This decision of the Supreme Court would indicate that where jurisdiction is vested in a Tribunal constituted under a Special Act, the jurisdiction of the company court under the Companies Act wilt be ousted. If the respondent company was not in liquidation then it is not disputed that a company court or a civil court cannot take Cognizance of matters which fall within the special jurisdiction of the Revenue Courts under the U.P. Act. The position cannot be different even if the respondent company is in liquidation.

(44) The learned counsel for the respondent company, however, relies pon a decision of a Single Bench of this court in the Official Liquidator Majestic Financiers (P) Ltd. v. Shri Hargurchet Singh Kandola and others. (LL.R. 1969 Delhi 839). In that case the application was filed by the official liquidator under sub-section (2) of Section 446 of the Act of 1956 claiming recovery of certain amounts from the erst- ” while Directors of the company. These applications were resisted inter alia on the ground that the official liquidator should have filed a suit and not an application and that court fees should be paid on such suits under the Court Fees Act. On these contentions, the following issues were framed by the court :- “1.Is the application not competent on the ground that the official liquidator should have filed a suit? 2. Should court-fees on the petition have been paid as upon a suit in accordance with Schedule of the Court-fees Act ?

(45) These two issues were dealt with together by the court. Both these issues were answered by the court in favor of the official liquidator and it was found that the applications filed by him were competent and that it is not necessary for the official liquidator to file a suit. Andley, J. made the following observations which are relied upon by the learned counsel for the respondent company:- “THE opening part of sub-section (2) contains the non-obstante clause. Therefore, it cannot be doubted that the company court will have jurisdiction to entertain or dispose not only any suit or proceeding by or against the company but also any claim made by or against the company. Therefore, it cannot be doubted that in so far as the language employed in sub-clauses (b) , (c) and (d) of sub-section (2) of Section 446 is concerned, the law as laid down by the Supreme Court must apply and it cannot but be held that it is open to the Official Liquidator to make applications for the purpose of any claims which may be made by or against the company. If the object of bringing sub-clauses (b), (c) and (d) was to avoid inevitable delay and expense which would be incidental to the institution and trial of a suit, I do not see any reason why, as a matter of construction, even a money claim by the Official Liquidator against any person has to be made only by a suit and not by a petition.”

(46) The learned Judge in making the above observations sought support from the decision of the Supreme Court in Dhrendra Chandra Pal v. Associated Bank of Tripura Ltd. . I have persued the judgment of this court as well as the judgment of the Supreme Court in the case of Dhrendra Chandra Pal. But I do not find anything in these judgments supporting the contention of the learned counsel for the respondent company.

(47) The question for consideration before this court in the case of Delhi Official Liquidator (supra) was whether a regular suit instead of an application should have been filed by the Official Liquidator before the company court. It was not disputed that even if a suit was the proper remedy such a suit would be taken cognizance of by the company court. The court was, therefore, not called upon to consider the question, whether as a company court it had special jurisdiction to take cognizance of the application filed by the Official Liquidator or whether a Tribunal or a court under any other Act had exclusive jurisdiction to take cognizance of such an application. In the case before the Supreme Court also the question for consideration was whether the Official Liquidator could file an application under Section 45B of the Banking Companies Act of 1949 or whether he had to file a regular suit for the eviction of a tenant of the bank. The question was one of the special jurisdiction of the company court and the general jurisdiction of an ordinary civil court in such matters. It was held that consistently with the scheme of the Banking Companies Act where the Liquidator has to approach the court under Section 45-B for relief in respect of matters legitimately falling within the scope thereof, elaborate proceedings by way of a suit involving time and expense, to the deteriment of the ultimate interests of the company under liquidation was not contemplated. Here also the Supreme Court was not called upon to consider the question of the jurisdiction of the company court under Section 45-B of the Banking Companies Act as against the exclusive jurisdiction of a Tribunal constituted under a. special Act like the U.P. Act. If the matters which have to be decided in the applications filed by the respondent company were such that could ordinarily be decided by a civil court, then it can be said that the company court had special jurisdiction to decide such matters by virtue of sub-section (2) of Section 446 of the Act of 1956. But the questions that have to be decided in these applications were not such that could be decided by an ordinary civil court. They fall within the exclusive jurisdiction of the Revenue courts under the U.P. Act. Therefore, sub-section (2) of Section 446 of the Act of 1956 did not have the effect of taking away the special jurisdiction of the Revenue Courts under the U.P. Act and of conferring such jurisdiction in the company court. I, therefore, hold that the learned District Judge did not have jurisdiction to entertain and dispose of the applications filed by the respondent company.

(48) The above findings would be sufficient to dispose of the present appeals and it would not be necessary to go into the merits of the respective claims of the appellant and the respondent company in respect of the lands in dispute. But if I were called upon to decide the respective claims of the parties on merits, I would still have found it difficult to sustain the order of the learned District Judge on the simple ground that the questions for determination were such as not be properly determined in summary proceedings by way of applications and that such questions could be properly determined only in a regular suit. The question for determination include the following : 1. Whether the respondent company obtained valid title from its venders in respect of the lands in dispute ? 2. Whether the land purchased by the respondent company under the sales deeds Exhibits P4 and P6 and P36 to P38 are identical with the lands in the possession of the appellants ? 3. Whether the lands in dispute were in possession of the respondent company at any time ? 4. Whether the respondents were in cultivatory possession of the lands in dispute and if so, from what date’? 5. Whether the consideration paid by the first appellant under the sale deed Exhibit P6 was proper consideration. In other words, what was the value of the land purchased by the first appellant from Roshan Lal Kapur on the date of Exhibit P6 ? 6. Whether the first appellant was a bonafide purchaser for consideration from its ostensible owner and whether he is protected under Section 41 of the Transfer of Property Act ? 7. Whether Roshan Lal Kapur had validly acquired Bhumidari rights in respect of the land under the provisions of the U.P. Act ? 8. Whether the second appellant had validly acquired Adivasi. Bhumidari rights in respect of the land under the U.P. Act ?

(49) These are questions which cannot properly be determined in summary proceedings. The parties should have adequate notice of the issues which arise for determination and also of the onus of proving such issues so that they could lead the necessary evidence on such issues. The parties should have a right and must be given an opportunity to cross-examine the witnesses of the other side. The parties should have the right and should be given an opportunity of filing documents in support of their respective claims and the other side should be given an opportunity of testing the genuineness of such documents. In the present case, the statements of some of the parties were recorded under Section 477 of the Act of 1956 and statements of some witnesses were recorded under Section 446 of the said Act. It does not appear that any of the parties or witnesses whose statements were so recorded were subjected to cross-examination by the other party. Infact, it would appear that most of the statements were recorded behind the back of one of the parties, namely, the second appellant herein. Result is that the evidence on record is not sufficient for the proper determination of several questions involved in the case.

(50) Even when an application is filed under sub-section (2) of Section 446 of the Act of 1956, it is open to the company court to direct the liquidator to file a regular suit. In the case of the Delhi Official Liquidator (Supra) the desirability of giving such a direction to the liquidator has been pointed ‘out. The court has observed thus : “the fact that a suit is contemplated by clause (a) of sub-section (2) does not go counter to this construction because if the Official Liquidator makes a claim by a petition, it is open to the company court to say, by reason of the controversies that are raised in the claim petition, that such a claim should be made by a suit. . . .'” The learned Judge has also indicated that a direction to file a suit should be given to the Official Liquidator in cases where the claim was against a third party and not against persons connected with the company, such as Directors etc. This is what the learned Judge has observed, It is possible that if the claims made in these petitions were against complete strangers the court might come to the conclusion, that it will be better to relegate the Official Liquidator to regular suit, but where the persons against whom claims are made have been directors of the company, it would be more appropriate to determine controversies on petitions which will be conducive to the avoidance of delay and expense. In this view of the matter also the findings of the learned District Judge on the respective claims of the parties based on summary proceedings cannot be upheld.

(51) In the result, the judgment of the learned District Judge is set aside and both the appeals are allowed. But in the circumstances of the case, there shall be no order as to costs.