Judgment :- RAMACHANDRA IYER, OFF. C.J. This is an appeal form the judgment of Balakrishan Aiyer J. rejecting a claim made on behalf of the Link Industries Ltd. (which is now under liquidation) in respect of certain calls made upon the respondent by the directors at a time when the company was a going concern. A few facts must be stated in order to appreciated the point inn controversy in this appeal. the Link Industries Ltd. was incorporated in 1946 as a public limited company. there was no adequate response for the taking up of its shares even in the initial stages. On August 13, 1947, the company issued 50, 00 shares of the nominal value of Rs. 10 each. Ramanathan Chettiar, the respondents, applied for and was allotted 36, 555 shares On allotment be paid a sum of Rs. 5 for each share the balance being uncalled at the time. On july 27, 1949, the Link industries Ltd. created a security by way of English mortgage to the Industrial financial Corporation of India to cover an advance made by the latter in sum of Rs.5, 00, 000. The company assigned, entire alia, their rights to receive the balance of Rs.5 on each share of uncalled share money in respect of the shares issued by the company. On August 8, 1956, the company was directed to be wound up by an order of this court. We are informed that the Industrial Financial corporation has filed a suit on the basis of the mortgage executed in its favour on the original side of the court. this suit is still pending There was a change in the managing agency of the company during the year 1953. the directors of the company in pursuer of a covenant entered into with the mortgagee decided at their meeting held on April 15, 1953, to call up the balance on the partly; paid shares giving two months time to the shareholders to pay the money. the new managing agents intimated this fact to the respondent and made a demand on him in respect of the balance due form hi. the new managing agents intimated this fact to the respondent and made a demand on him in respect of the balance due form hi. the respondents protested stating that he took up the shares with a view to boost them in the market and that it was expressly agreed between this and the previous managing agents at the time of the allotment of shares, that he should not be called ;upon to pay the unpaid share money till he was able o sell three-fourths o his holding to outsidersThis defense was not perhaps a new one, as the respondent raised the same objection when theater was an earlier attempt on the part of the them managing agents to call upon shareholders to pay up heir unpaid share capital. But neither the managing agents nor the mortgagee agreed to this After the winding up of the company, the Official liquidator passed an order on June 14, 1956, settling a list of contributories Included in the list was the name of the respondent with a liability for a sum of Rs. 1, 82, 775, representing the unpaid call money. Ramanathan Chettiar, the respondent, thereupon filed an application, Apply. No. 1593 of 1956, to remove his name form the list of contributories settled by the office liquidator. The official liquidator had earlier filed an apple action, Apply. No. 1342 of 1956, for directing the contributories in the list settled by him who we4re still liable to the company in respect of their unpaid share capital on their respective shares, to pay the sums stand against their names in the list with interest thereon at six per cent. per annum. both the applications were contested Balakrishan Aiyar J. was of the opinion that the probabilities of the matter indicated that the them managing agents had given some assurance of the kind pleaded by the respondent, but the leaned judge fond it unnecessary ;to decide the ;matter finally as to how far such an assurance could be held to be binding on the company. The learned judge held that the official liquidator could not sustain the application in view of the fact that the right in respect of the unpaid money had been assigned ;under the English mortgage executed in favour of the Industrial Financial Corporation and the mortgage's rights would be outside the liquidation proceedings. The learned judge held that the official liquidator could not sustain the application in view of the fact that the right in respect of the unpaid money had been assigned ;under the English mortgage executed in favour of the Industrial Financial Corporation and the mortgage's rights would be outside the liquidation proceedings. He further held that the application filed by the official liquidator being one under section 186 of the Indian Companies ACt, 1913, could not be maintained in respect of a claim for recovery of the call money. In the result the official 1598 of 1956 was allowed and his name was deleted form the list of contributories. The official liquidator has filed O.S.A. Nos. 23 of 1957 and 24 of 19571 respectively against the judgment of Balakrishan Aiyar J. on the said two applicationWe shall first consider O.S.A. No. 23 of 1957 which concerns the maintainability of Appln. No. 1342 of 1956. That application though purporting to be one filed under section 187 of the Indian Companies ACt was really made under section 186 of the said Act This is conceded by the official liquidator. the objection that on an application filed under section 186 the court could not order payment of the call money is not a mere technicality. Under section 186 of the Indian Companies Act, the official liquidator can revolver a debt due to the company. If the claim is well founded the court has no option but to make an order for payment of the amount claimed. Under section 187, however, the amount to be called dies not depend on the claim made by the official liquidator., The court will have to fix the amount which the shareholder should be called upon to pay and in fixing the amount it will have to ascertain the amount necessary to satisfy the debts and liabilities of the company and the costs, charges and expenses of a the winding up and for the adjustment of the fights of the contributories among themselves. That implies that the court conical for such amounts only as will be necessary for the purpose of winding up and no call could properly be made until one is able to release the exact position as to the total amount payable by the company and the other available assets, for it is only them that the court can decide the amount necessary to be called up form the contributories. It is not the contention of the official liquidator in the present case that the stage has yet been reached. therefore, the point o be considered is whether in respect of a claim for the unpaid call money in respect of the shares issued which became exigible even prior to the commencement of the winding up proceedings the official liquidator could file an application under section 186. of the Indian Companies Act or could only proceed under section 187. Section 186 corresponds to section 469 and section 187 to section 476 of the companies ACt, 1956 They run thus "186. () the court may at any time after making a winding up order, make an order on any contributory for the time being settled in the list of contributors to pay in manner directed by the order, any money due form him or of9m the estate of the person whom he represents to the company exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act (2) the court in making such an order may, in the case of an unlimited company allow to the contributory by way of set-off any money due to him or to the estate which he represents form the company on any independent dealing oar contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit ; and may in the case of a limited company make to any director whose liability is unlimited or to this estate the like aloneness. ; Provided that in the case of any company whether limited or unlimited when all the creditors are paid in full any money due n any account whatever to a contributory form the company may be allowed to him by way of set off against any subsequent call 187. ; Provided that in the case of any company whether limited or unlimited when all the creditors are paid in full any money due n any account whatever to a contributory form the company may be allowed to him by way of set off against any subsequent call 187. (1) The court may at any time after making a winking up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on and order payment thereof b by all or any of the contributories of the time being settled on the list of contributories to the extent of their liability, for payment of any money which the court considers necessary to satisfy the debts liabilities of the company and the cost, charges and expenses of winding up, and for the adjustment of the right of the contributories among themselves (2) In making the call the court may ;take into consideration the probability that some of the contributories may partly or wholly fail to pay the call." * These two sections provide summary remedies for realizing the movies dire form the contributories. The former confers an alternative to the remedy of the liquidator t resort to the ordinary courts for recovery of monies, while the latter in terms prescribes a procedure for realization of the calls due from the contributories either individually or with respect to the estate in his hands. A liability of a contributory to the company may arise in one of the three ways : (1 ) on account of a debt due to the company, (2) on account of unpaid share money in respect of which calls had been made even before the liquidation and (3) on account of unpaid share money which has not been called during the time when the company;y was a going concern but which has to be called for the purposes of the liquidation. Section, which is one for enforcement of all monies, is technically known in England as "a balance order". By virtue of section 199 all orders made by the court under sections 186 and 187 can be enforced in the same manner as a decree In order to appreciate the scope of section 187, reference must be made to section 156 which declares the liability of the contributory. By virtue of section 199 all orders made by the court under sections 186 and 187 can be enforced in the same manner as a decree In order to appreciate the scope of section 187, reference must be made to section 156 which declares the liability of the contributory. By that section a statutory liability is imposed upon every past and present member of the company to contribute to the assets of the company to contribute to the assets of the company ;to an amount sufficient of the payment of its debts and liabilities and the cost etc., subject to certain qualifications maintained in the section. In the case of a limited liability company, such contribution would not exceed the amount of unpaid share money. It will follow form the provisions of the section that both calls in respect of unpaid share capital which all's have been made by the directors of the company when it was functioning and also calls not so make, would come within its ambit. A statutory liability is created in respect of both kinds of calls. Section 159 states that the liability of a contribute shall be a debt payable at the time specified in the calls made on him by the liquidator. Thus it will be seen that while ;under section 21(2) all money payable by any; member to the company under the memorandum of articles will be a debt due from him to the company, that is, in a case where a company is functioning, under section 159(1) all calls made will be debts payable by the contributory to the ;official liquidatorMr. V.P.Raman, appearing for the appellant, raises two contentions: (1) Unpaid share money is respect of which all had bee made by the directors having become payable immediately; after such call, would cease to be call money and become a debt which can be recovered by an action in the ordinary courts. V.P.Raman, appearing for the appellant, raises two contentions: (1) Unpaid share money is respect of which all had bee made by the directors having become payable immediately; after such call, would cease to be call money and become a debt which can be recovered by an action in the ordinary courts. As section 186 provides summary remedy for recovery of debts due form the contributories it should be regarded as a substitute for the right of a suit and would be co-extensive with it so as to include a claim add in respect of call money that had already been demanded by the company while it was functioning and (2) unpaid share money after the call has been made before the company was would up is not an amount payable by virtue of any call in pursuance of that Act, as the latter category would include only cases coming under section 187 which according to the learned causal will comprise only amounts not allied for by the company itself but for the first time called up at the instance of the official liquidator Section 186 in terms excludes form its operation a claim for money payable by the contributory by virtue of any call under the ACt. It is necessary to ascertain first who is call money, whether it comprises amounts of share monies only which have not been called up before, or will include amounts due in respect of shares for which call had already been made by the directors In a limited liability company which has issued shares but in respect of such shares the entire share money has not been paid up, the shareholder will be liable to the company to pay the balance of share money when a call is made. The right to make the call belongs to the company. The articles of association generally provide how and by whom calls have to be made. A member of the company will be liable to pay the calls in accordance with the request. In Polymer's Company Law, 20th edition it is stated at page 22 "It is the characteristic of the company limited by shares that subject to the provisions of the articles the directors may call upon the shareholders, at any time to pay up the unpaid portion of the nominal amount of their shares. In Polymer's Company Law, 20th edition it is stated at page 22 "It is the characteristic of the company limited by shares that subject to the provisions of the articles the directors may call upon the shareholders, at any time to pay up the unpaid portion of the nominal amount of their shares. Such calls may be made during the active life of the company or during the winding up it will be noted that the statutory definition of the company limited by shares in section 1(2)(a) does not contain any qualification or restriction on the power of the company to make calls. the intention of the legislature is that once the initial working funds which were provided by the initial payments of the shareholders on their shares are exhausted, the directors may make further calls, if and when the financial position of the company demands. No maximum or minimum amount of the call is prescribed by the statute. In the contemplation of the legislator, the fall imports an element of uncertainty both as regards time and amount." * The share money which has been called by the directors but not paid will still be call money, thought it can be said it is only an arrear of call money. In other words, where a share of nominal capital is company the nominal value of the share taking up the share becomes liable to pay the company the nominal value of the share taken. It may be that the entire money is paid at one or only a part is paid on application of share and on allotment and the balance is stipulated to be paid later. The articles of association normally provide that the share money could be paid in installments on such dated on which the company makes a call on him. As long as anything remains uncalled on the issued share, that would be unpaid liability in regard to the balance amount due on such share. Where the balance of share money or any portion thereof has been called, but there is a default on the part of the shareholder to pay the same on such call, that would be a call in arrear but it would still be call money. Whether it is the one case or the other it will be a debt. Where the balance of share money or any portion thereof has been called, but there is a default on the part of the shareholder to pay the same on such call, that would be a call in arrear but it would still be call money. Whether it is the one case or the other it will be a debt. As observed by Rankin J. in Montgomery; v. Sikdar Iron Works Ltd. the former liability in uncalled share money is an existing debt although money will not be payable until call is made., i.e. debitum in present but solvendum in future. the mere fact that the money due after the call is maintained in section 21(2) as debt, does not mean that it ceases to be call money. Indeed as were have pointed out earlier even a claim make by the liquidator in respect of uncalled share amount would be a debt (see section 159) therefore the exception contained in section 186 would cover both the share money which had at the time of liquidation become exigible and that outstanding but no yet payable. The provisions of section 186 which exclude form its operation any money payable by virtue of any call in pursuance of the Act is sufficiently wide to include a case where money has already been called by the directed while the company was a going concern. If the legislature intended that the exception in section 186 should relate only to cases where the official liquidator wished to make a call in respect to unpaid share money which had not earlier been called by the directors, it would have certainly employed appropriate language and in clearer terms. the second aspects of the contention of the learned counsel for the appellant is that although the arrear of call money is considered as call money, it being one made in pursuance of a contract evidenced by the articles of association and not in pursuance of the ACt, the exception would not Appln. Learned counsel would confine the words "any call in pursuance of this Act" to cases where the liquidator for the first time calls up the shareholder to pay as according to him that alone would be one under the ACt., There are tow answers to this content. Learned counsel would confine the words "any call in pursuance of this Act" to cases where the liquidator for the first time calls up the shareholder to pay as according to him that alone would be one under the ACt., There are tow answers to this content. First, the official liquidator in the instant case had settled a list of contributories, and in that included the name of the respondent and them applied to the court for the enforcement of that liability. Prima facie, that is an application to enforce a statutory liability. Indeed, the official liquidator in the first instance based his application only under section 187, although later railing that the necessary conditions for an application under that section had not been fulfilled, he ruled on section 186 to sustain the application. Second, as section 156 covers the case of a liability in respect of past as well as future calls an application to enforce that statutory liability would be one under the Act. Those considerations apart, section21 provides that the memorandum and articles of association shall bind the members to the say extent as if they had been signed by each member. By that section, statutory fiction is created by within every member though he is not a party to the contact evidenced, by the memorandum and articles of association, becomes a party. The liability under the articles of association, becomes a party. The liability under the articles of association can, therefore, be said to be only by virtue of section 21(1). To quoted the expressive smile of Balakrishna Aiyar J., "to say as the official liquidator appeared to do that something done under the articles is not a thing done under the ACt, is analogous to saying that what hangs for a bough does not hang form the tree." * It would, therefore, follow that the unpaid share money in the instant case should be regarded as one due by virtue of a call made under the ACtBut it is contended on behalf of the office liquidator that section 187 should be construed to be for a summary remedy only with respect of calls made by the court in respect of uncalled amounts due from the shareholders, and that, therefore, section 186 should be held to comprehend all claims for share money other than those covered by section 187. This, however, is not correct. This, however, is not correct. What we are concerned with in the present case is whether section 186 applies to a claim for share money, and if by the terms of that section that claim is not included the fact that section 187 (even assuming that to be so) would not be available t the office liquidator would be hardly relevant, Mr. Raman contends that the procedure prescribed by section 186 would be available to all contractual liabilities of the contributory in respect of which action could be laid in a court and as the liability of the shareholder in respects of the share money which has been called but not paid is in the nature of a debt, a suit would lie for recovery of the same. Section 186 being an alternative to a suit, would therefore include all claim which could be enforced by means of a suit. In other words, the contention s that section 186 would apply to the enforcement of all liabilities in the nature of a debt and as the claim in respect of the share money called by the directors is a debt under the provisions of section 21(2) of the Act such a claim would be comprehended by section 186. On the other hand, section 187 would refer only to a statutory call after liquidation. This argument ignores that the claim of the liquidator even in respect of uncalled share monies will also b3 debt by reason of section 199(1) But let us see whether section 187 is restricted only to claim of share money against contributories in respects of which o call bed been made prior to the winding up by the company. The liability of the contributory to contribute to the assets of the company is, no doubt, not the same as a liability which could be enforced by the company while it was functioning. It is a liability created by the stature for the payment of the creditor etc. In hansraj Gupta v. N.P. Asthana, Lord Russel of Killowen observed "On the winding up, section 156 of the Indian companies Act came into play. His liability under that section is respect of the shares was absolute and followed form the fact of his being on the register in receipt of those shares. In hansraj Gupta v. N.P. Asthana, Lord Russel of Killowen observed "On the winding up, section 156 of the Indian companies Act came into play. His liability under that section is respect of the shares was absolute and followed form the fact of his being on the register in receipt of those shares. The original contract may us apply the reason for his name having been placed on the register in respect of the shares, but after the winding up his liability in respects of the shares arose ex lege and not ex contractu." * As stated earlier, section 159 makes such a liability a debt but section 187 prescribes the quantum which the shareholder should be called upon to pay, namely, that amount which would be found necessary of the discharge of the liabilities and expenses. As section 156 covers both calls already made and calls too be made, the statutory liability thereunder will be covered by section 187. In re Whitehouse & Co. it was recognised that a balance order could be made in respect of a call make prior to the winding up by the company. That is also the decision in Jagannath Prasad v. U.P.Flour & Oil Mills Co. Ltd. where it was held that an order u;under section 151 of the companies ACt of 1882 (which corresponded to section 187 of the Act of 1913) could be made for the purpose of realising th unpaid share money due by reason of a call make by the company prior to the winding-up. This principle was accepted in Mahomed Akbar Abdulla Fazalbhoy v. Associated Banking Corporation of India Ltd. It is, therefore, clear that both on principle and authority section 187 could be restored to by the official liquidator for the purpose of realising monies due from a contributory in respect of calls made y the company itself which it wa functioning. It (1) 1932 2 comp. CAs, 548, 557 58 ; I.L.R. 54 All 827. (2) (3) 1916 (38) ILR(All) 347. (4) 1950 20 CompCas. 325 ; A.I.R. 1950 Bom>386stands to reason therefor, that section 186 would relate only to the other liabilities of the contributory There is yet another principal of statutory interpretation by the application of which the same conclusion is reached, namely, the history of the section. (2) (3) 1916 (38) ILR(All) 347. (4) 1950 20 CompCas. 325 ; A.I.R. 1950 Bom>386stands to reason therefor, that section 186 would relate only to the other liabilities of the contributory There is yet another principal of statutory interpretation by the application of which the same conclusion is reached, namely, the history of the section. In Hansraj Gupta v. Official Liquidators of the Dehra Dun Mussourie Electric Tramway Co Ltd., Lord Russell of Killowen observed "...in considering the meaning and effect of section 186 it is impossible to overlook the fact that it is verbatim identical with the corresponding section in the legislation of this country, ......" * Section 186 corresponds t section 259 of the English companies Act, 1948. As observed by the Privy Council in the above case that is a section with ancestral history. "(1) It is concerned only with monies due form a contributory other than money payable by virtue of a call in pursuance of the Act...(2) It is a section which created a special procedure for obtaining payment of monies ; it is no a section which purports to create a condition upon which to base a claim for payment. It create no new rights. (3) The power of the court to over payment is discretionary. It may refuse to act under the section, leaving the liquidator to sue in the name of the company...." * Section 250 of the English Companies Act, . 1948, corresponds to section 101 of the English companies Act of 1862 The terms of the section are practically the same except in regard to the exception contained in that section . The words in the 1862 Act were exclusive of any monies which he or the estate of the person whom he represents may be liable to contribute by virtue of any call made or to be made by the court in pursuance of this part of the Act, It was presumably because of this clause that Jessel M.R. observed in In re Whitehouse & Co. at page 601, that section 101 while it excluded call in the winding up included a call made before the winding-up. Now "part of the ACt" referred o in section 101 was part VI which related to the winding-up of the company. at page 601, that section 101 while it excluded call in the winding up included a call made before the winding-up. Now "part of the ACt" referred o in section 101 was part VI which related to the winding-up of the company. Section 101 inters therefore only; excepted those monies that became payable by virtue of the statutory liability created under Act., Section 259 of the English Act and its corresponding provision section 187 the Indian companies ACt enacted the exception in mush wider terms, by substitution the words "in pursuance of this Act" instead of "in pursuance of this part of the ACt." The section would, thereof, cover all case of calls made under other provision of the chapters in the ACt, namely, those made by the company itself prior to the winding-up even under section 101(1) While construing section 101 of the 1862 Acts courts in England have always held that a claim in respect of share money already called by; the ;company would come within the terms of section 102 (corresponding to section 187) which enabled the court to issue a balance order. In Lindley on Companies, 1902 6th edition, at page 1148 it is stated "The payment of calls made before the winding up may be enforced by a balance order but the balance order is not a judgment and the original debt is not merged in it. If, therefore, the liquidator fails to obtain payment of such calls under a balance order he may still bring an action in the name of the company for the amount of the calls." * Authority for that proposition is the decision reported in Westmoreland Green and Blue State Co. v. Feilden In In re Whitehouse & Co. a contributory sought to set off a debt due to him form the company against calls made against him by the company before the winding-up. It was held that he could not do so as the right south to be enforced was a new one in favour of the liquidator. Jessel M.R.observed at page 600 "As I said before, it is as much unpaid if he had not paid the calls made before the winding-up as it is in respect of the amount unpaid on the shares in respect of which no call has been made before the winding up. Jessel M.R.observed at page 600 "As I said before, it is as much unpaid if he had not paid the calls made before the winding-up as it is in respect of the amount unpaid on the shares in respect of which no call has been made before the winding up. It seems to me that the contributor's liability created by the 38th section being one limited to the amount unpaid, it is immaterial for the purpose of this action, whether the call was made before of after th;e winding-up provided the amount is unpaid . that being so. it is a liability to contribute which, in the case of an ordinary winding-up, is of course inferable by the ;court...." * Referring to that decision, Buckley on the companies Acts, 13th edition, observes at page 539 "The based of that judgment are, (1) that contributions under section 212 of this Act are not debts to the company, but contributions to the assets enforceable by the liquidator ; (2) that such contributions include all that is unpaid on shares at the commencement of the sending up, including, therefore, calls made before, as will as calls made in the winding -up. and (3) that this being so, there is no set-off under the Statutes of Set0off because it is the liquidator who enforces the calls, while it is not the liquidator but the company that owes the debt, and therefore, to establish a set-off the person asserting it must find in the Companies ACts some provision giving a right of set-off." * It is thus clear that section 187 can be invoked by the official liquidator for realising the monies due in respect of calls made before the winding-up of the company. It stands to reason that section 186 (1) 1891 (3) Ch(D) 15 (2) 1878 (9) Ch(D) 595 Would not apply to such a case, particularly in view of the fact that it expressly; excepts form its operation all claims by virtue of calls made under the Act. to hold otherwise would be to consture the two sections as overlapping each other, it being left to the liquidator to resort to any section that he may choose. To assume such a discriminatory power in the liquidator would lead to injustice and even absurdity. to hold otherwise would be to consture the two sections as overlapping each other, it being left to the liquidator to resort to any section that he may choose. To assume such a discriminatory power in the liquidator would lead to injustice and even absurdity. For example, in respect of claim sunder section 186, a set-off is allowed while in respect of those under section 187 no set-off is permissible ; in claims under the former section the entire arrear of call money will have to be paid while under the latter provision only that which is necessary for the purpose of winding up need be paid ; under the former section the contributory can plead limitation if the claim is barred p; on the other hand if the claim is ;made under section 187 no such defense would be permissible. To consture that section in the way in which we are asked to do would lead to this anomaly, namely, that at the choice of the liquidator certain defenses would be made available to the shareholder. Such a power of discrimination as is suggested would certainly work hardship. On the other hand a harmonious construes o fit two sections would require that each o them dealt with a distinct category of claims against the contributory, section 186 dealing with claims other than those in respect of calls made and section 187 dealing with calamines under section 156 of the Companies ActLearned counsel roles on the decision in Chandiok v. Pearey Lal where it was held that a call validly; made by the directors proper to liquidation which remained unpaid became a debt due from the shareholder to the company, and if the liquidator applied under section 186 of the Companies ACt for relation of such debt the court would have no power to question whether it is necessary for the liquidator to realise it, or not. Braund J. referring to a call made by the directors prior to the winding-up observed : "They have lost their character as calls and have become debts and, as such, are realisable by; the liquidator just as any other debt or asset is realised." With great respect to the learned judge, the proposition, in our opinion, has been stared rather broadly. We have pointed out earlier that the calls already made and which were still in arrear would nevertheless be calls. We have pointed out earlier that the calls already made and which were still in arrear would nevertheless be calls. The facta that they are treated as debts dies not alter their essential character as call money. Indeed even the contrubutory, s liability for uncalled payment would also be debts. No destination can therefore be made in regard to the application of the section by reason of the fact that the share money once called becomes a debt and the share money not yet called at the time of the liquidation dies not amount to an exigible debt. Reliance (1) 1942 ILR(All) 26; 1942 AIR(All) 136, 138 is however placed on the following observation of Chagla C.J. in the decision Mohammed Akbar Abdulla Fazaaibhy v. Associated Banking Corporation of India Ltd. "the difficulty in the way of acceptation this argument is that it is now well settled, as I shall presently point out, that an order under section 186 can only be made in respect of contractual debts due by the contributory to the company. Section 186 has no reference whatever to the statutory liability created by section 156. It is only those debts which a liquidator can realise by means of a suit that can be ordered to be paid by the court under section 186." * And again "Mr. Seervai has tried to distinguish this case by stating that these observations only apply when the debt due by the contributory is other that a debt in respect of a call. Mr. Seervai, s contention is that the debt respect of a call stands on a different footing because such a debt becomes a statutory debt under section 156. That contention is obviously erroneous because Jagannath Prasad v. U.P.Flour & Oil Mills Co. Ltd., was cited before their Lordships and their Lordships apparently approved of that decision and pointed out that that case had no relation to section 186 and went on to say that it was a case relating to money due on the shares in the company which was in liquidation, the liability for which on a winding up became a statutory liability under section 156 of the Indian Companies ACt, 1913." On the basis of the foregoing observation it is contended that section 186 would also apply to cases where a claim is made in respect of calls made prior to the winding-up. We are of the opinion that the statement of the principle set out in the passage cited above is a little wide. It is not that in respect of every suit that could be laid against a contributory, that section 186 would apply. Whether the summary remedy provided for by the section. As pointed out earlier, Jagannath Prasad v. U.P.Flour and Oil Mills Co. Ltd. was a case in respect of a claim regarding calls made prior to the winding-up. It was held that section 187 would apply. In Mohammed Akbar v. Associated Banking Corporation of India Ltd., a suit was filed by the liquidator of a company for recovering many dir in respect of calls made prior to the winding up by the director. there was a plea of lamination by the contrubutory. It was contended on behalf of the liquidator that the plea of limitation was not available having regard to the statutory; right given to hi, The learned judges held that a claim under section 156 of the(2) 1916 (38) ILR(All) 347 Act could no be agitated by means of a suit and the exclusive remedy provided under the Act was an application under section 187, that, therefore, it was not open to the liquidator to base his cause of action on the statutory rights created by section 156 to sustain his claim. the learned judges held that as the statute which created a right under section 156 also provided for a remedy under section 187 that remedy should be considered as an exclusive remedy. We are unable with great respect to share that vie. As pointed out earlier, section 187 provides a procedure for obtaining a summary order known as balance order in England. Westmoreland Green & Blue Slate Company v. Feilden, was a case that related to he recovery of unpaid share money which had prior to the liquidation proceedings been called up by the directors. It was held that an action could be maintained for the arrear of call money not withstanding that a balance order had been obtained for the amount die. that case therefore, recognized that (1) a balance order could be made in respect of a call made prior to liquidation and (2) that the balance order is not a judgment the existence of which would preclude an action Under the Indian Companies ACt, 1913, the position would be similar. that case therefore, recognized that (1) a balance order could be made in respect of a call made prior to liquidation and (2) that the balance order is not a judgment the existence of which would preclude an action Under the Indian Companies ACt, 1913, the position would be similar. section 156 creates a right there should be a remedy to enforce the right. Section 187 no doubt provide a summary remedy. but under section 199 the order is not made a decree. it is merely enforceable as a decree, i.e. a fiction is created for the purpose of enforcement. As pointed out in the decision referred to above no execution could be levied in a foreign court or even a suit filed on the basis of a balance order, the debt not being merged in it. The remedy under section 187 cannot therefore, be regarded as a complete one. If a balance order (an order under section 187) does not amount to a judgment in which the debt or liability could be said to be merged, an action on the basis of the debt will lieThe position then comes to this that both in respect of a claim in regard to a call made proper to winding up and that made subsequently a suit would lie. Section 186 and 187 provide a summary remedy as an alternative to the normal remedy by way of suit. The question then is only to ascertain their respective fields of operation. It can be presumed that the legislator intended them for different categories of case, thus avoiding a duplication o summary remedies. We have shown earlier that section 187 would apply also to case of calls made before liquidation. Therefore, those calls should fall outside section. 186. this construes would give full scope to the words of section 186 which specifically excludes form its operation call monies due under the Act. We are, therefore, of opinion that section 186 would apply only to the case of a claim ex contractu other than call money whether dire or yet to be called, while section 187 would apply; for the recovery of all call monies whether exigible at the time of liquidation or otherwise. We agree with Balakrishna Aiyar J. that the liquidator in the instant case cannot case cannot proceed under section 186. The appeal fails and is dismissed with costs Appeal dismissed.