A winding-up order can be passed against a dissolved company without first getting the dissolution order set aside.

S.K.Kapur, J.

1. This appeal is directed against the judgment of the District Judge, Delhi, dated 23rd February, 1956. The appellants Kundan Lal and firm Jessa Ram Hira Nand filed a petition for winding up of Hanuman Chamber of Commerce Limited (hereafter referred to as the company) on 18-7-1954 under sec. 162 of the Indian Companies Act, 1913. The appellants claimed to be the creditors of the company and the winding up was sought on four grounds :-

(1) The company was unable to pay its debts; (2) It had suspended bussiness for more than a years ; (3) The name of the company had been struck off the register by the Registrar of Companies on 23rd July, 1952, and the company had been dissolved under sec. 247 of the Indian Companies Act, 1913 ; and (4) It was just and equitable to wind up the company.

2. The company having been dissolved the petition was resisted by one Sat Narain Goenka. He took a preliminary objection that since the company had been dissolved in 195 2 no order could be passed for the winding up of the company. The learned District Judge framed to issues which were as under :-

(1). Is the petition maintainable in view of the dissolution of the Hanuman Chamber of Commerce limited by the Registrar, Joint Stock Companies, Delhi, under Sec. 247 of the Indian Companies Act on 23-7-1952 ? (2) Is it competent to Sat Narain Goenka to make the above objection ?

He decided issue No. (2) in favour of the respondent but following a decision of the High Courts reported in Parduman Singh V/s. Pioneer Jewellery Company held that before a petition for winding up could be entertained proper steps had to be taken under sub-section (6) of sec. 247 for setting aside the order of dissolution and that not having been done in this case the winding up #1;petition was not maintainable. Mr. Sawhney, the learned counsel for the appellants, has submitted that the impugned order was passed on 23rd February, 1956, the Companies Act, 1956 , received the assent of the President on 18th January, 1956, and came into force from 1st April, 1956. He submits that whatever be the position under the 1913 Act it is clear that such an order can be made under the 195.6 Act without first getting the dissolution of the company set aside under sub-section (6) of sec. 247. He has invited my attention to proviso (b) to sub-section (5) of sec. 560 which provides that notwithstanding the fact that a company has been struck off the register by the Registrar and dissolved powers of the Court to wind up the company will not be affected. He says that an appeal is a continuation of the original proceedings and taking account of the change in law it should be held that the jurisdiction of the Court to .wind up the company in such circumstances is unaffected. He has further invited my attention to section 645 of the Companies Act, 1956 , and says that the order of the Registrar striking off the company passed in July 1952 should be deemed to have been passed under the new Act. Laly, Mr. Sawhney .submits that even under the 1913 Act the position was the same and proviso (b) to sub-section (5) of sec. 560 merely clarifies the position that obtained under the 1913 Act.

3. In reply to the first submission of Mr. Sawhney, Mr. Misra, the learned counsel for the respondents, says that reference to sections 647 and 658 shows that the winding up petition had to be disposed of on the assumption that the new Act had not been passed. According to Mr. Misra, the same result would follow by application of section 6 of the General Clauses Act.

4. I am in agreement with the submisson of Mr. Sawhney to the effect that in view of proviso (b) to sub-section (5) of sec. 560 a winding up order can be passed against a company without first getting the dissolution order set aside. There can be no doubt nor has it disputed by the respondent that the present appeal is a continuation of the original proceedings. It has also not been disputed that change of law can be taken into consider