2003 Supreme(Raj) 1481
RAJASTHAN HIGH COURT AT JAIPUR BENCH
S.K.Keshote, J.
In Re. Rajasthan State Agro - Appellant
S.B. Company Application No. 154 of 2003 in Company Petition No. 30 of 1996.
Decided On : 19-09-2003
For the Appearing Parties:Arvind Gupta, N.K. Maloo, B.K. Sharma and B.C. Meena, Advocates.
Under Section 446 of the Companies Act, 1956, permission may be required to prosecute a writ petition against a company in liquidation, even if the winding up order is stayed and the official liquidator has not been appointed.
Headnote:
Companies Act, 1956 - Section 446 - Permission to Prosecute Writ Petition against Company in Liquidation
Fact of the Case:
The applicant filed a writ petition against the Rajasthan State Agro Industries Corporation, which was ordered to be wound up. The applicant sought permission to proceed with the writ petition against the company in liquidation.
Finding of the Court:
The court allowed the application, stating that though the winding up order was passed, it was stayed and the official liquidator had not been appointed. The court opined that while prima facie no leave was required, permission was necessary as directed in the writ petition.
Issues: Permission to prosecute writ petition against a company in liquidation under Section 446 of the Companies Act, 1956.
Ratio Decidendi: The court's decision was influenced by the fact that the winding up order was stayed and the official liquidator had not been appointed, leading to the conclusion that permission was necessary despite prima facie opinion.
Final Decision: The applicant was permitted to prosecute the writ petition in the court concerned.
JUDGMENT
1. - Heard learned counsel for the parties and perused the contents of the application.
2. The applicant filed a writ petition bearing S. B. Civil Writ Petition No. 6473 of 1991 in this court against the Rajasthan State Agro Industries Corporation. It is stated therein that in case the writ petition is allowed the consequential monetary benefits are to be provided by the Rajasthan State Agro Industries Corporation (in liquidation).
3. The Rajasthan State Agro Industries Corporation was ordered to be wound up by this court under its order dated September 3, 1997. This application is filed under Section 446 of the Companies Act, 1956, for grant of permission to the applicant to proceed with the writ petition against the Rajasthan State Agro Industries Corporation (in liquidation).
4. Shri Arvind Gupta, advocate, for Shri N. K. Maloo, learned counsel for the applicant, has produced for the perusal of the court the certified copy of the order dated September 7, 2001 in S. B. Company Application No. 52 of 2001. It is submitted that in an identical matter this court has granted permission to the applicant therein to prosecute the writ petition in the court against the Rajasthan State Agro Industries Corporation.
5. It is not in dispute that the order of winding up of the Rajasthan State Agro Industries Corporation was kept in abeyance/stayed by the court. Thus, though, winding up order was passed but it is lying stayed. The official liquidator has not been appointed as its liquidator. In view of these facts, though, prima facie, I am of the opinion that no such leave is required but as in the writ petition the court has asked the applicant to seek the leave of the company court, the permission is required.
6. Accordingly, this application is allowed. The applicant is permitted to prosecute his writ petition in the court concerned.
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