An application under Section 446(2) of the Companies Act, 1956, for the recovery of a debt is not a suit and, therefore, ad valorem court-fee is not payable. The application should be stamped as an application under the Companies Act as provided in Article 1(d) of Schedule II of the Court Fees Act, 1870.

Bal Raj Tuli, J.

1. The Punjab Finance Private Ltd. (in liquidation), through its official liquidator filed the present petition under Section 446(2) read with Section 468 of the Companies Act; 1956, for the recovery of Rs. 20,318.67 from the respondents. The claim is based on a loan raised by the respondents from the petitioner-company on the security of a vehicle on hire-purchase basis. After the issues were framed and the case was fixed for the evidence of the parties, the learned counsel for the respondents Nos. 1 and 3 made an application for the framing of an additional issue to the following effect:

"Whether the claim petition for recovery of the amount from the respondents is in the nature of a suit and as such ad valorem court-fee should be paid?"

2. Arguments have been heard on this issue which has been treated as preliminary. The argument of the learned counsel for the respondents is that any action by the official liquidator for the recovery of the amount from the debtors of the company amounts to a suit and, therefore, ad valorem court-fee on the amount claimed should be paid as prescribed in Article 1, Schedule I, of the Court Fees Act, 1870 . According to the learned counsel, for deciding such claims or suits, the jurisdiction of the High Court as a winding-up court and all the subordinate courts, which have the jurisdiction to try such suits, is concurrent and the nature of the proceedings taken by the official liquidator does not change with the forum in which they are filed. The learned counsel relies on a judgment of a learned single judge of the Calcutta High Court in In re Osier Electric Lamp Manufacturing Company Ltd., [1967] 37 Comp Cas 306wherein the following observations occur :

"The words suit has been instituted , claim or question has arisen in Sub-clause (d) of Clause (2) of Section 446 refer to suit or application or claim or question pending in a court other than the winding-up court. The words (is instituted , arises or is made in Sub-clause (d) of Clause (2) again suggest that such a suit or claim or application was made after the date of winding-up of the company.

The words made before or after the order for winding-up of company again clearly suggest that it contemplates not only suits, claims or applications made before but also after the winding-up of the company in a court other than the winding-up court. The words before or after the commencement of the Companies (Amendment) Act, 1960 make it crystal clear that suits, claims and applications may be made, even after the amendment in 1960, in courts other than the winding-up court."

3. These observations do not deal with the matter of court-fee but only lay down that the jurisdiction of the High Court is concurrent with any other competent court as far as suits are concerned. I respectfully agree with the observations, but it is of no help to the learned counsel on the point in issue.

4. To the similar effect are the observations of the Division Bench of the Calcutta High Court in Narendra Nath Saha v. Official Receiver, High Court, Calcutta, [1969] 39 Comp Cas 258, 260 (Cal). The observations are :

"It is true that, in item No. 16, reference is made to a suit triable by this court under any special law other than the Letters Patent. Granting that the Companies Act, 1956 , would be a special law for the purpose and granting also that the suit, by virtue of Section 446(2) of the said Act, would be triable by this court, the jurisdiction, conferred under the said section on this court, being, as held by the learned trial judge himself, a concurrent jurisdiction. Item No. 16 of the First Schedule should not be read to have the effect of ousting the jurisdiction of the city civil court which has otherwise primary jurisdiction in this matter."

5. Again, the observations in this judgment are of no use to the respondents. The counsel has then relied on a judgment of a learned single judge of the Mysore High Court in Official Liqu