Applicability of the provisions of Section 49 of Insolvency Act, 1949 in proceedings in winding up.

On 19th April, 1955, an application was made to wind up the Free Press Journal (Madras) Ltd. On 2nd May, 1955, an interim receiver was appointed and on 18th July, 1955, an order to wind up the company was made.

The Free Press Journal (Madras) Ltd., was located in premises belonging to the Dinroze Estate whose proprietors are D. D. Italia and J.D. Italia. On 12th January, 1956, possession of the premises was delivered to the proprietors by the Receiver. On 4th January, 1956, the Dinroze Estate filed a claim before the Official Receiver for a sum of Rs. 5,670 which it alleged was due to it as arrears of rent for the premises occupied by the Free Press Journal (Madras) Ltd. The Receiver made a preferential payment of Rs. 2,625 to the Dinroze Estate on the basis that the rent for the period between 2nd May, 1955, when he was appointed interim receiver and 12th January, 1956, when he handed over possession should be properly treated as part of administration charges. The Dinroze Estate has now filed this application praying that a further sum of Rs. 1,281 should be paid to it in preference to other creditors.

In the affidavit filed in support of the application it is alleged that in January, 1955, certain creditors of the company now being wound up filed suits against it and that at their instance the premises was sealed by the order of the Court, that in this manner the premises came to be in custodia legis and that therefore the claim for rent required priority.

Mr. Sreeraman next contended that even if the claim to the whole of Rs. 1,281 is not allowed the Dinroze Estate is entitled to priority at least in respect of one month’s rent. This is how he put his argument. Section 229 of the Indian Companies Act provides:

“In the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable ... as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent.”

This provision in section 229 justifies the importation into the present proceedings of section 49 of the Presidency Towns Insolvency Act which runs (so far as is now material) as follows:

“(1) In the distribution of the property of the insolvent there shall be paid in priority to all other debts

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(c) rent due to a landlord from the insolvent: provided the amount payable under this clause shall not exceed one month’s rent.”

Now, I do not think that section 229 of the Indian Companies Act justifies resort to section 49 of the Presidency Towns Insolvency Act because section 230 of the Companies Act makes express provision in respect of all categories or heads of claim dealt with in section 49 of the Presidency Towns Insolvency Act. Clause (a) of sub-section (1) of section 49 assigns priority to all debts due to the Government or to any local authority. Similarly, clause (a) of sub-section (1) of section 230 of the Indian Companies Act provides for priority in respect of all revenue, taxes cesses and rates, whether payable to the Crown or to a local authority, and, in this respect, modifying the provision in clause (a) of sub-section (1) of section 49 of the Presidency Towns Insolvency Act, fixes a period of twelve months as that to which the arrears entitled to priority relate. Similarly, clause (b) of sub-section (1) of section 49 of the Presidency Towns Insolvency Act provides for the preferential payment of salary and wages of clerks, servants and other employees. There is a corresponding provision in clause (b) of sub-section (1) of section 230. One important difference between the two clauses is that a limit of Rs. 1,000 is provided in the Companies Act while a lower limit is provided in the Presidency Towns Insolvency Act. Sub-section (4) of section 230 of the Companies Act makes provision in respect of the rights of landlords, a matter dealt with in clause (c) of subsection (1) of section 49 of the Preside