The absence of leave to continue or proceed with a suit against a company in liquidation does not render the decree passed in such suit a nullity.

( 1 ) THIS is an application for setting aside an ex parte decree passed on December 12, 1960. The application has been made by Brahmapootra Tea Co. , (India) Ltd. The notice of Motion is addressed to Messrs. Roopnarain Ramchandra Private Ltd. , the plaintiff.

( 2 ) THE petitioner company states that in the month of July, 1960 the Registrar of Companies, West Bengal, presented a petition for winding up of Brahmapootra Tes Co. (India) Ltd. , on the ground that the petitioner company had made default in delivering the Statutory Report. An order was made on November 15, 1960 for winding up the company. On November 19, 1960 it is alleged that the petitioner came to know of the said petition as well as the order for winding up. It is further alleged that the petitioner was not served with any notice and had no knowledge of the presentation of the winding up petition. On or about November 28, 1960 the petitioner made an application for setting aside the winding up order. On December 5, 1960 the winding up order was set aside. On the same day the Official Liquidator was appointed as Provisional Liquidator and the Provisional Liquidator was directed to take possession of all books, papers and documents and assets of the petitioner. The directions for advertisements were given and the application was made return, able on January 9, 1961.

( 3 ) ON January 11, 1961 the petitioner's solicitors received a letter from the plaintiff's solicitors intimating that the latter had received instructions from Messrs, Roopnarain Ramchandra Private Ltd. of Kanpur to support the winding up application. On January 12, 1961 the petitioner's solicitors obtained a copy of the affidavit affirmed on behalf of Messrs, Roopnarain Ramchandra Private Ltd. , and from the said affidavit the petitioner came to know of the suit filed by the plaintiff against the defendant company, and also that a decree had been obtained in the suit on December 12, 1960.

( 4 ) IN paragraph 8 of the petition it is alleged that the company had no knowledge of the institution of the suit and of the decree passed therein. In paragraph 9 of the petition it is alleged that the writ of summons was served by publication of the substance of the writ of summons in the Statesman on September 22, 1960 and in the Sanmarg on September 17, 1960. These facts came to the knowledge of the petitioner from the perusal of the affidavit of service filed in this suit.

( 5 ) THE petitioner states that the Board of Directors of the company had no knowledge of the agreement alleged in the suit. It is further alleged that the petitioner's Board of Directors never passed any resolution for borrowing any slim of money from the plaintiff company.

( 6 ) IN paragraph 11 of the petition it is alleged that when the decree was passed on December 12, 1960 the Official Liquidator was already appointed Provisional Liquidator and as such it was not competent for the plaintiff to proceed with the suit without obtaining leave from this court. In paragraph 12 of the petition it is submitted that the ex parte decree is a nullity. The petition has been verified by one Gopikrishna Vyas, the constituted attorney of Brahmapootra Tea Co. (India) Ltd.

( 7 ) ON behalf of the company there is a supporting affidavit affirmed by Tulsidas Mundhra on January 24, 1961. In the said affidavit it is stated that one Haridas Mundhra was all times the Chairman of the Board of Directors of the defendant company and was in sole charge of the management and administration of the affairs of the company. Thereafter it is alleged that the Board of Directors never authorised Haridas Mundhra to negotiate for any loan or that if Haridas Mundhra made any agreement with the plaintiff company he did so on his own behalf and the agreement is not binding on the company or its Board of Directors. In paragraph 4 of the said affidavit it is stated that in the year 1958 an application was made by Indra Investors Private Ltd. for winding up of the defenda

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