JUDGMENT

DESAI, J. :— Sudarsan Chits (India) Ltd., appellant herein, (Company for short) is governed by the Companies Act,. 1956. Three, petitions being Company Petitions Nos. 9/81, 8/81 and 49/81 were moved by the creditors of the Company under Section 439 of the Companies Act praying for winding up of the Company on the ground that it was unable to pay its debts. The learned Company Judge passed an order winding-up the Company and appointed Official Liquidator to be the Liquidator of the Company. This order was challenged in MFA Nos. 578, 579 and 520 of 1981 which came up for hearing before a Division Bench of the Kerala High Court. The judgment of the Division Bench is reported in, Sudarsan Chits (India) Ltd. v. G. Sukumaran Pillai ILR (1983) 1 Ker 700. The appeals were disposed of after approving the scheme of compromise and arrangement under Section 391 of the Companies Act directing that the winding-up order shall be held in abeyance on certain undertakings to be filed by the Company before the court within the prescribed time to abide by the conditions imposed in the judgment and if there be any default in the matter of performing of the conditions so imposed, and / or undertaking is not filed as directed therein, the winding-up order made by the learned Judge will stand confirmed. A further direction in this behalf given by the court is material and may be extracted :

"On the first payment of Rs. 25,00,000 being made within four weeks from this date the winding up order will be held in abeyance and thereupon the official Liquidator will be considered as appointed to function as the Provisional Liquidator subject to such restrictions on his powers and privileges as we may indicate here."

Since then the scheme of compromise and arrangement as set out in the judgment of the Division Bench is being implemented and we were informed that an amount of Rs. 2.40 crores has already been disbursed amongst the claimants / creditors of the company. We were also informed that the scheme of compromise and arrangement is being meticulously implemented under the supervision of the court as directed by the Appellate Bench.

2. In the course of implementation of the scheme, it became necessary to recover certain debts and claims due in favour of the Company. For this purpose Civil Misc. Application No. 14913 of 1983 was moved before the Appellate Bench praying for a direction that the provisional Liquidator be directed to file claim petitions under Section 446(2) of the Companies Act, in the Company Court for realising the claims of the Company which would further assist and facilitate the implementation of the scheme of compromise and arrangement as supervised by the court. One G. Sukumaran Pillai was impleaded as the first respondent and the provisional Liquidator was impleaded as the second respondent.

3. It appears to have been contended before the court that as there was no winding up proceeding pending before the Company Judge or the Appellate Bench and as the Company is being managed under the scheme of compromise and arrangement, the Company Court will have no jurisdiction to entertain the claim petition under Section 446(2) of the Companies Act, This contention found favour with the Appellate Bench and the Civil Misc. Petition was rejected. Relying upon the decisions in official Liquidator v. Kadir 1977 Ker LT 39, and Faridabad Cold Storage & Allied Industry v. Official Liquidator, Ammonia Supplies Corporation P. Ltd., (1978) 48 Com Cas 432, the court concluded that the right to avail of the remedy by filing a claim petition conferred by Cl. (b) of Section 446(2) can be availed of only in a court which is winding up the company. Hence this appeal by special leave.

4. After the special leave was granted a notice was served upon the provisional Liquidator informing him that the appeal will be listed for final hearing on August 1, 1984. Even after the intimation the provisional Liquidator did not choose to appear at the hearing.

5. C. M.