The main legal point established in the judgment is that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 prevails over the Companies Act, 1956, and the Company Court does not have jurisdiction over suits or applications pending on or after the 'appointed day' as per the 1993 Act.

Abdul Gafoor, J.

M.C. A. No. 12/91 was filed by M/s. Industrial Credit & Investment Corporation of India (I.C.I.C.I.) seeking leave to continue Suit No. 549 of 1989 on the file of the Bombay High Court instituted by it on 17.2.89, far earlier than winding up of this company. This company was ordered to be wound up only on 22,8.90. An order was passed to withdraw the suit to this court and also this court permitted the applicant to continue the suit outside the winding up. Another order was also passed in Report No. 2 and in M.C. A. No. 12/91 directing M/s. I.C.I.C.I. and M/s. State Bank of Travancore to pay to the Official Liquidator to meet the initial expenditure for winding up. These orders were taken up before the Supreme Court in S.L.P. (Civil) No. 10101/91 and 11055/92. these petitions were heard and decided by the Supreme Court as per judgment reported in I.C.I.C.I. v. Srinivas Agencies & Ors. ((1996) 4 SCC 165). The Supreme Court left the matter to the Company Court to pass appropriate orders in the light of the observations contained in the judgment. In the said judgment, the Supreme Court laid down certain norms and principles with regard to the exercise of the powers of the Company Court under S.446 of the Companies Act, 1956. The Supreme Court also observed that while exercising that power the Company Court also would bear in mind the rationale behind the enactment of Recovery of Debts Due to the Banks and Financial Institutions Act, 1993, in short'the 1993 Act'. It is in that background M.C. A. 12/91 has again come before this Court for consideration.

2. M.C. A. 58/96 is filed by the Official Liquidator seeking to transfer another suit namely Suit No. 2553/94 pending before the High Court of Bombay exercising the powers vested in this court under S.446 of the Companies Act, 1956. That suit was filed by M/s. Industrial Development Bank India, Bombay, the 2nd defendant in the suit filed by M/s. I.C.I.C.I. Therefore, the subject matter is closely connected with the issue raised in M.C.A. 12/91.

3. M.C.A. 122/96 is another application filed by the Official Liquidator seeking transfer of Suit No. 549/89 filed by I.C.I.C.I. before the High Court of Bombay, the subject matter of M.C.A. 12/91.

4. M.C. A.-207/96 is another application filed by M/s. I.C.I.C.I. seeking to set aside the order passed by this Court on 28.2.91 in M.C.A. 12/91 and seeking leave under S.537 of the Companies Act for execution/ enforcement of any decree to be passed in the said suit. This also is thus closely connected with the matter agitated in M.C.A. 12/91.

5. The facts frame in all these four applications raise same issue, namely, whether the suits now pending before the Bombay High Court filed by the secured creditors of the company in liquidation need be withdrawn to this court and whether the plaintiffs be granted leave to continue the suit standing outside the winding up proceedings.

6. S.446 of the Companies Act deals with special powers enjoined on the Company Court with regard to the pending suits at the time of winding up, in which the company wound up, is a party. Sub-s.(1) provides that no suit or other legal proceeding shall be commenced or be proceeded with against the company except by leave of the Company Court and subject to such terms imposed by that Court. Thus, when there is a pending suit against a company in liquidation, the plaintiff in the concerned suit, to continue the suit, shall mandatory obtain leave of the company court to proceed with the suit. Sub- s.(2) of S.446 of the Companies Act enables the Company Court which had passed the winding up order to entertain the jurisdiction to dispose of any suit by or against the company by withdrawing it from the court where it is pending. Thus, the Company Court has an overwhelming power under S.446(2) to withdraw the suit from any court if the company in liquidation is a party to that suit. Sub s.(2) contain a non-obstante clause. Therefore, that power to withdraw the su