Official Liquidator v. Indian Bank — 1986 DIGILAW 50 (KER)

ORDER U.L.Bhat, J. 1. All these applications are filed by the Official Liquidator who is the Liquidator appointed in the matter of Chemmeens Exports (P) Ltd. in liquidation. They have come before us on reference by the learned Judge in company jurisdiction. In company Petition 18/1978, on 1st March 1979, the Company Court passed the winding up order. The assets have not yet been realised and the liabilities have not yet been fixed. 2. The first respondent therein, Indian Bank, appears to be a secured creditor of the company. First respondent moved the Company Court for leave to file suit against the Company under liquidation to recover the amount due to them from the company mentioning also the fact that the company had deposited title deeds in regard to its immovable property and other assets. Notice was given to the Official Liquidator. On the Official Liquidator stating that he had no objection to leave being granted, the Company Court granted leave. Accordingly, first respondent filed suit O.S. 169/1980 in the Subordinate Judge's Court, Cochin against the company represented by the Official Liquidator as well as the erstwhile Managing Director and Director of the company and their wives who appear to have signed the promissory notes and made themselves personally hable. The company represented by the Official Liquidator filed written statement stating, inter alia, that the charge (created by way of deposit of title deeds) has not been registered in accordance with section 125 of the Companies Act, 1956 (for short 'the Act') in regard to the immovable property or the machinery but that it has been registered only regarding stock-in-trade. Therefore, the charge cannot be enforced against the property or machinery. The Civil Court did not consider this submission but answering the issues in favour of the plaintiff, passed a preliminary decree for sale of the charged property. Ext. A-1 is copy of the relevant entries in the register of charges maintained by the Registrar of Companies. Ext. A-2 is a copy of the judgment and Ext. A-3, copy of the decree in the suit. The decree was passed on 28th May 1982. Apparently, the Official Liquidator has not preferred appeal against the decree. However, it is submitted that some of the other defendants in the suit have preferred appeal and the same is pending. 3. Ext. A-2 is a copy of the judgment and Ext. A-3, copy of the decree in the suit. The decree was passed on 28th May 1982. Apparently, the Official Liquidator has not preferred appeal against the decree. However, it is submitted that some of the other defendants in the suit have preferred appeal and the same is pending. 3. Believing that further steps will be taken by the decree-holder to bring the charged properties to sale for recovery of the amount due, the Official Liquidator purporting to present the entire body of creditors of the company under liquidation has filed M.C.A. 11/83 praying for the following reliefs: 1. Declaring that the charge created by the company in liquidation in favour of the Indian Bank against the land and buildings of the company that is, plaint schedule properties in O.S. 169/80 and the plant and machinery in the company etc. are void against the Official Liquidator and the creditors of the company in Liquidation; and 2. to declare that the preliminary decree and judgment in O.S. 169/80 are contrary to the provisions of section 125 of the Act and as such void and unenforceable against the Official Liquidator representing the general body of creditors excluding the decree-holder and to the extent they create charge on the assets of the company scheduled to the plaint. The prayer in M.C.A. 16/83 is to stay all further proceedings in the suit till the final disposal of M.C.A. 11 /83. The relief prayed for in M.C.A. 43/83 is to quash the final decree proceeding pending in the civil court as the same is instituted without leave under section 446 of the Act. Applications are opposed by the first respondent on whose behalf counter affidavit has been filed in M.C.A. 11/83. 4. The relief prayed for in M.C.A. 43/83 is to quash the final decree proceeding pending in the civil court as the same is instituted without leave under section 446 of the Act. Applications are opposed by the first respondent on whose behalf counter affidavit has been filed in M.C.A. 11/83. 4. Learned counsel representing the Official Liquidator contended that the charge in regard to the immovable property and the machinery ought to have been registered under section 125 of the Act and the same, not having been registered, is void and unenforceable against the Official Liquidator and the creditors, that the Official Liquidator as such or the Official Liquidator as representing the body of creditors was not impleaded in the civil suit filed by the first respondent and the Official Liquidator was in the picture only as representing the company in liquidation (first defendant) and therefore could not have raised the plea under section 125 of the Act (though as a matter of fact, he did raise the plea), that the civil court could not have decided the plea in that suit since the charge is binding on the company and therefore the decree is unenforceable in regard to the assets covered by the charge to the extent it is not registered and the interests of the body of creditors should not be allowed to suffer and the Company Court has the duty and right to protect the interest of the body of creditors. Learned counsel also contended that his right to move the Company Court on behalf of the body of creditors is unaffected by the leave granted by the Company Court for filing the suit. According to learned counsel, the Company Court has jurisdiction in this behalf under section 446(2) of the Act. 5. Learned counsel for the first respondent does not contend that the charge in regard to the immovable property and the machinery has been registered as required by law or that the non-registration of the same does not render it void as against the Official Liquidator or the creditors. 5. Learned counsel for the first respondent does not contend that the charge in regard to the immovable property and the machinery has been registered as required by law or that the non-registration of the same does not render it void as against the Official Liquidator or the creditors. Learned counsel for the first respondent contended that the matter should have been agitated in the civil court and since the Official Liquidator did not agitate the matter in the suit or at any rate, did not challenge the decree in appeal, he is precluded by the principles of res judicata and estoppel from raising the question before the Company Court. Learned counsel also contended that when leave is granted by the Company Court under sub-section (1) of section 442 of the Act, jurisdiction under sub-section (2) of section 446 of the Act cannot be exercised and therefore the Company Court cannot grant reliefs prayed for. Learned counsel further contended that the matter is already agitated or deemed to have been agitated and therefore this Court could not issue any declaration as prayed for. 6. Part V of the Act deals with registration of charges. The expression "charge" includes a mortgage. Sub-section (1) of section 125 states that "subject to the provisions of this Part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by this Act within thirty days after the date of its creation". The proviso allows the Registrar to grant extension of time subject to a maximum of seven days. Sub-section (2) states that the provisions in sub-section (1) shall not prejudice any contract or obligation for the repayment of money secured by the charge. Sub-section (4) enumerates the charges to which the section applies. Clause (c) refers to a charge on any immovable property, wherever situate, or any interest therein. Sub-section (2) states that the provisions in sub-section (1) shall not prejudice any contract or obligation for the repayment of money secured by the charge. Sub-section (4) enumerates the charges to which the section applies. Clause (c) refers to a charge on any immovable property, wherever situate, or any interest therein. Clause(c) refers to a charge, not being a pledge, on any movable property of the company. The other subsections are not relevant. 7. Section 126 states that "where any charge on any property of a company required to be registered under section 125 has been so registered, any person acquiring such property or any part thereof, or any share or interest therein, shall be deemed to have notice of the charge as from the date of such registration," Section 130 requires the Registrar to keep, with respect to each company, a register in the prescribed form of all the charges requiring registration under the Part. He is also bound by payment of prescribed fee to enter in the register, with respect to every such charge, particulars such as date of creation, amount secured by the charge, particulars of the property charged and the persons entitled to the charge. The register shall be open to inspection by any person on payment of a fee of one rupee. Section 131 requires the Registrar to keep a chronological index in the prescribed form and with the prescribed particulars, of the charges registered with him. Section 132 requires the Registrar to give a certificate of the registration of any charge registered in pursuance of the Part stating the amount thereby secured and the certificate will be conclusive evidence that the requirements as to registration has been complied with. 8. Section 134 states that "it shall be the duty of the company to file with the Registrar for registration the particulars of every charge created by the company... requiring registration under the Part". However, registration of any charge may also be effected on the application of any person interested therein. Section 136 requires every company to cause a copy of every instrument creating any charge requiring registration under the Part to be kept at the registered office of the company. requiring registration under the Part". However, registration of any charge may also be effected on the application of any person interested therein. Section 136 requires every company to cause a copy of every instrument creating any charge requiring registration under the Part to be kept at the registered office of the company. Payment of satisfaction in full of any charge relating to the company shall be intimated to the Registrar by the company, as required in section 138 and the Registrar has to take consequential steps and make an appropriate memorandum in the register as required in section 139. A copy of the memorandrum should be Furnished to the company under section 140. Section 141 gives certain overriding powers to the Company Law Board in this regard. Section 142 prescribes penalties for default in filing with the Registrar for registration particulars of charge etc. Section 143 requires every company to keep at its registered office a register of charges and enter therein all charges specifically affecting property of the company. Section 144 deals with right to inspect copies of instruments creating charges and register of charges. 9. Every company formed to carry on trade or business has an implied power to borrow and give security for loans made to it, subject of course to any restrictions in the Memorandum of Association. A person who lends on the security of mortgage of a property of the company is normally entitled to repayment of the loan on the charge of the property before any other creditor. A person who deals with the company is entitled to know the status and position of the company. A person lending money on the security of any particular item of property of the company is similarly entitled to know the extent to which the property is already secured. A person who is approached to lend money without any security is also entitled to know how the assets of the company are placed and whether he can have any legitimate expectation of recovering the money. That is why the Act requires the company to register charges with the Registrar; in the event of the failure of the company to do so, it is open to any other person to take steps to register the charge. Such a provision is necessary because otherwise a secured creditor, whose charge is not registered, will find the security rendered nugatory. Such a provision is necessary because otherwise a secured creditor, whose charge is not registered, will find the security rendered nugatory. That is the consequence of the provisions referred to above. Such a charge or security is void against the liquidator and the creditors of the company. 10. There is no dispute that the charge created by the company in favour of the first respondent has not been registered with the Registrar and therefore is void against the liquidator and the other creditors of the company. This is relevant when a company is in the process of being wound up. It is true that a secured creditor is outside the winding up and he can proceed against the security even without the intervention of the Company Court. But then if his security is not registered as required by law, it is to be treated as void as against the liquidator and other creditors. Obviously, section 125 is intended to create a right in the liquidator and the creditors to allege and prove the void nature of an unregistered charge. If they succeed in doing so, any right which the secured creditor has vis-a-vis the property charged will not avail against the liquidator or the other creditors. 11. The question which next arises for consideration is whether the liquidator could have or ought to have raised this plea in the civil court when the first respondent filed a suit against the company and directors and other persons responsible for recovery of the loan on the charge and by sale of the property charged. It is pointed out that first respondent filed application No. 1216/79 before the Company Court seeking leave to institute the suit against the company in liquidation and others for recovery of the amount due and on the official liquidator stating that he has no objection, leave was granted. First defendant in the suit is the company in liquidation represented by the Official Liquidator. It is pointed out that in the written statement filed by the first defendant it was specifically stated that the charge had not been registered and therefore the property cannot be proceeded against by the creditor. Copy of the judgment (Ext. A-2) shows that the civil court did not deal with that aspect at all. It is pointed out that in the written statement filed by the first defendant it was specifically stated that the charge had not been registered and therefore the property cannot be proceeded against by the creditor. Copy of the judgment (Ext. A-2) shows that the civil court did not deal with that aspect at all. The fact that in the written statement this aspect of the case was pointed out does not necessarily lead to the conclusion that the Official Liquidator had the right to raise the plea. Whether he has a right to raise such a plea and to require the civil court to adjudicate the plea and grant relief is a matter which requires consideration. 12. Part VII of the Act deals with winding up. Winding up of a company may be either by the court or voluntary or subject to supervision of the Court. The present is winding up of a company by the court in accordance with the provisions in Chapter II. Winding up of a company by the court shall be deemed to have commenced at the time of the presentation of the petition for winding up, as stated in sub-section (2) of section 441. Thereafter, it is open to the court to stay any suit or proceedings against the company pending in any court other than the Supreme Court or any High Court. Section 444 requires that where the court makes an order for winding up of a company, intimation thereof shall be sent to the Official Liquidator and the Registrar. Sub-section (1) of section 446 states that when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Court and subject to such terms as the Court may impose. Section 447 states that an order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company as if it had been made on the joint petition of a creditor and of a contributory. Under section 449, on a winding up order being made in respect of a company, the Official Liquidator shall, by virtue of his office, become the liquidator of the company. Under section 449, on a winding up order being made in respect of a company, the Official Liquidator shall, by virtue of his office, become the liquidator of the company. Section 451 lays down the general provisions as to Liquidators. He shall conduct the proceedings in winding up the company and perform such duties as the court may impose upon him. Section 452 states that a liquidator shall be described by the style of "the Official Liquidator" of the particular company in respect of which he acts and not by his individual name. Section 454 requires a statement as to the affairs of the company to be made to the Official Liquidator. 13. Section 456 deals with custody of company's property. Sub-section (1) states, inter alia, that where a winding up order has been made, the liquidator shall take into his custody or under his control all the property, effects and actionable claims to which the company is or appears to be entitled. Sub-section (2) states that all the property and effects of the company shall be deemed to be in the custody of the Court as from the date of the order for the winding up of the company. Section 457 lays down the powers of the liquidator. He has, among other things, the right to institute or defend any suit prosecution or other legal or winding up proceeding civil or criminal, in the name and on behalf of the company and to do such other things as may be necessary for winding up the affairs of the company and distributing its assets. 14. The liquidator, of course, represent the company which is being wound up. He is an officer of the court. At the same time, he represents the entire body of creditors. His main duty is to realise the assets of the company and discharge its dues and liabilities. It is the liquidator who speaks for the company and can represent the company in litigation and other matters. He exercises his powers, subject to control of the court. He is entitled to seek assistance of the court in the discharge of his duties. He has therefore dual capacity viz., he represents the company; at the same time, he represents the entire body of creditors. Not infrequently, interest of the company and that of the creditors may involve conflict. Nevertheless, he represents both these entities. 15. He is entitled to seek assistance of the court in the discharge of his duties. He has therefore dual capacity viz., he represents the company; at the same time, he represents the entire body of creditors. Not infrequently, interest of the company and that of the creditors may involve conflict. Nevertheless, he represents both these entities. 15. It is necessary to understand the exact position of a company under liquidation and that of the liquidator visa-vis such company. The company in liquidation, no doubt, remains the legal owner of its assets, unless the court vests them in the liquidator; however the company ceases to be the beneficial owner of the assets from the commencement of the winding up. That is because, the statute directs the assets to be applied to pay off the creditors and distribute the balance among the contributories. The creditors and the contributories may not have any specific equitable interest in the company's assets as long as their claims have not been quantified and adjudicated for payment. 16. Dealing with this question, Buckley on the Companies Acts, Vol. I 1981 Edn. states at page 594: "The winding up order constitutes the liquidator a trustee of the property of the company for those who are creditors at the commencement of the winding up." At page 595, it is stated: "But the liquidator is only a trustee in the sense that the property of the company ceases upon the winding up to belong beneficially to the company and passes into his custody, to be applied by him as directed by the statute. The liquidator is not a trustee for each creditor and contributory so as to be liable in his capacity of trustee for negligence". At page 596. it is stated: "The liquidator represents at the same time both the creditors and the company, and a question sometimes arises as to how far he can enforce the rights of the creditors as independent of, and paramount to, those of the company, and how far he can enforce them only in right of the company. At page 596. it is stated: "The liquidator represents at the same time both the creditors and the company, and a question sometimes arises as to how far he can enforce the rights of the creditors as independent of, and paramount to, those of the company, and how far he can enforce them only in right of the company. The result of the decisions and dicta on this subject, which are noticed elsewhere is perhaps this, that although the liquidator is substituted for, and enforces the rights of creditors in right of, the company, yet (i) the winding-up order calls into existence new rights and new liabilities which did not exist before, and (ii) equities which might have been set up against the company cannot prevail against the liquidator as representing the creditors." 17. In In re Anglo Oriental Carpet Manufacturing Company 1903 I Ch. 914 Buckley, J. observed: "The assets have been said to be impressed in the hands of the liquidator with a statutory trust in favour of the creditors. Upon the commencement of the winding up, an immediate duty was cast upon the liquidator to collect the assets and distribute them among the creditors then existing." 18. In Ayerst (Inspector of Taxes) v. C and K [Con-struction) Ltd. 1975 (2) All E.R. 537. Lord Diplock observed: "Functions of the liquidator are similar to those of a trustee in bankruptcy or an executor in the administration of the estate of a deceased person. There is, however, this difference; that whereas legal title in the property in a bankruptcy vests in the trustee and legal title to the property vest in the executor, a winding up order does not of itself divest from the company of the legal title to any of it's assets...........the property of the company ceases on the winding up to belong beneficially to the company" 19. There is duality in action on a winding up order being passed. Legal title continues to vest ordinarily in the company but the company has ceased to be the beneficial owner. The assets and liabilities are to be held for the benefit of the creditors and others pointed out in the statute. Therefore, the liquidator has to function in a dual capacity, one representing the company being wound up and the other representing the creditors, if not others. The assets and liabilities are to be held for the benefit of the creditors and others pointed out in the statute. Therefore, the liquidator has to function in a dual capacity, one representing the company being wound up and the other representing the creditors, if not others. In a suit against the company in liquidation, the company can be represented only by the Official Liquidator. In representing the company in the litigation, is it open to the official Liquidator to raise any plea which is not available to the company as such? We think not. In fact, it cannot be said that in such a suit the Official Liquidator in the matter of liquidation of a particular company is as such a party. It is the company which is the party though represented by the Official Liquidator. The pleas available to the Official Liquidator are those available to the company. Pleas which are not available to the company are not available to the liquidator. 20. The plea that for want of registration under section 125 of the Act the charge is void is not a plea available to the company. That is because, according to the statute, the charge is void only against the liquidator and the creditors and not against the company and because the non-registration is on account of the default of the company and such a defaulter cannot be allowed to take advantage of its own default. Therefore, the void nature of the charge as against the liquidator and the creditors is not a plea available to the company and as such could not have been raised in the litigation by the company represented by the Official Liquidator. Even if the Official Liquidator has brought this matter to the notice of the civil court, the civil court could not have adjudicated upon it, as it is a plea not available to any one of the defendants in the suit. 21. This concept arises frequently in courts of law in considering the doctrine of res judicata or even of estoppel. The doctrine of res judicata is found in section 11 of the Code of Civil Procedure. 21. This concept arises frequently in courts of law in considering the doctrine of res judicata or even of estoppel. The doctrine of res judicata is found in section 11 of the Code of Civil Procedure. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court." In order that the principle of res judicata can apply, the parties to the litigation must be litigating under the same title. Where the title is different, it does not matter whether the same party is litigating; that is because he is litigating under a different title. For this purpose, he is a different personality. Clearest illustration of what we are indicating obtains in the case of a legal representative. A person who is being proceeded only as a legal representative of another person can raise only a plea available to the person whose legal representative he is; if he himself has an independent title to the subject matter of the dispute, he is precluded from raising the plea. A person who is being sued in a particular capacity, say, for example, karanavan of a tharvad, can raise a plea available only to the tharvad. In another litigation, it will be open to him to set up a plea in his personal capacity. Though the individuals are the same, since their capacities are different, they are treated as two different persons. At any rate, they are not treated as same party or as persons claiming under the same party. See Akkamma v. Venkatapathi A.I.R. 1925 Mad. 59, Radha Bindore v. Sri Gopal Jiu A.I.R. 1927 P.C. 128, Madhavan v. Chathu Nambiar A.I.R 1951 Mad. 285 and Korin v. Indian Cables Company A.I.R. 1978 S.C. 312. 22. At any rate, they are not treated as same party or as persons claiming under the same party. See Akkamma v. Venkatapathi A.I.R. 1925 Mad. 59, Radha Bindore v. Sri Gopal Jiu A.I.R. 1927 P.C. 128, Madhavan v. Chathu Nambiar A.I.R 1951 Mad. 285 and Korin v. Indian Cables Company A.I.R. 1978 S.C. 312. 22. We therefore hold that the plea that the charge on account of its non-registration under section 125 of the Act cannot be enforced in the civil suit filed by the first respondent was not available to the company represented by the Official Liquidator and could not have been adjudicated upon by the civil court. That plea, however, is available to the Official Liquidator as such and the body of creditors. Therefore, the Official Liquidator as representing the body of creditors is entitled to urge that plea inspite of the decree passed by the civil court. The principle of res judicata will not apply to the instant case. For the same reason, the principle of estoppel also cannot have any application. 23. The question which next arises for consideration is whether the fact that the Company Court has granted leave to sue has any bearing on the relief claimed by the Official Liquidator in this proceeding and whether the Company Court does not have the power to grant relief under sub-section (2) of section 446 of the Act. Leave is granted under sub-section (1) of section 446 of the Act to which reference has already been made by us. The provision states that "when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded against the company, except by leave of the Court and subject to such terms as the Court may impose". The purpose of this provision is only to ensure that all claims against the company which can be determined by cheap, expeditious and summary procedure available in a winding up proceeding are not made the subject of costly, long drawn out and elaborate litigation. The purpose of this provision is only to ensure that all claims against the company which can be determined by cheap, expeditious and summary procedure available in a winding up proceeding are not made the subject of costly, long drawn out and elaborate litigation. Therefore, whenever a company is to be sued, that must be brought to the notice of the Company Court so that the Company Court can consider whether the particular claim could be disposed of by it or whether the party should be relegated to the procedure in the civil court. Ordinarily, if the party has a prima facie case and his claim cannot be dealt with adequately within the winding up, or if the remedy he seeks cannot be enforced in the proceeding, leave will be granted. A secured creditor is ordinarily outside the winding up and can realise his security without the intervention of the court. Therefore, when a secured creditor desires to bring action for sale etc., the Company Court will ordinarily grant leave. Similarly when a person seeks a remedy other than money decree such as decree for specific performance, or damages, injunction etc., the Company Court will grant leave. Or where the company is merely a nominal defendant, leave will be granted. As observed by Buckley on Companies Act, referred to supra, at page 580: "But in general, leave to institute or proceed with an action will only be given where some question arises which cannot properly be determined in the winding up, and for the determination of which an action is requisite." In the case of a secured creditor, who is not prepared to give up his security, the Company Court will necessarily grant leave. The fact that leave is granted by the Court after hearing the liquidator or on his submission that he has no objection to leave being granted, cannot affect the right of the liquidator or the creditors to raise appropriate pleas against the creditor at any appropriate stage or forum. 24. We now turn to the contention of the first respondent that with reference to the subject-matter of the dispute in this case, the Company Court has no jurisdiction under sub-section (2) of section 446. It is said that where leave is granted under sub-section (1), jurisdiction under sub-section- (2) cannot be exercised. 24. We now turn to the contention of the first respondent that with reference to the subject-matter of the dispute in this case, the Company Court has no jurisdiction under sub-section (2) of section 446. It is said that where leave is granted under sub-section (1), jurisdiction under sub-section- (2) cannot be exercised. Sub-section (2) of section 446 of the Act reads thus: "(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of” (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact which may relate to or arise in the course of the winding up of the company; whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960." 25. Sub-section (2) of section 446 was absent in its present form in the original Act. It was incorporated by substitution by the Amending Act of 1960. As observed by the Supreme Court in Sudarsan Chits (I) Ltd. v. G. Sukumaran Pillai A.I.R. 1984 S.C. 1579 "to accelerate the process of winding up so as to bring them to an end, this sub-section was amended in its present form in 1960 conferring jurisdiction on the Court winding up the company to entertain amongst others any suit or proceeding by or against the company or any claim made by or against the company." The Court winding up the company would have jurisdiction to entertain proceedings enumerated in clauses (a) to (d) of sub-section (2). Company Court has jurisdiction to entertain and dispose of any suit or proceeding by or against the company, any claim made by or against the company, any application made under section 391 and any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of the company. 26. Indeed, the power conferred by sub-section (2) on the Court winding up the company is of widest possible amplitude. In particular, the power conferred under clause (d) is an all encompassing one. That is understandable since the Company Court is the court exclusively exercising jurisdiction in regard to matters arising in connection with winding up of a company. Therefore, that court is invested with overriding powers. We find nothing in the scheme or provisions of the section to indicate that jurisdiction under sub-section (2) can be exercised only where sub-section (1) has not been invoked. 27. Sub-sections (1) to (3) of section 446 deal with different facets of the jurisdiction of a court winding up a company. There shall not be any proceeding against the company without the leave of the court. This provision subserves an important purpose in as much as it is the responsibility of this court to ensure proper winding up and dissolution. Without the knowledge and consent of this Court, the company shall not be proceeded against. It is another vital aspect of the same matter which is covered by sub-section (3). The Court winding up the company has power to call before itself any litigation relating to the company and dispose of the same. Clauses (a) to (d) of sub-section (2) enumerate certain other powers, some of the same nature dealt with in sub-section (3) and some of quite different nature. For example, clause (a) gives power to the Court to entertain and dispose of suit or proceeding by or against the company. That clause subserves the same purpose as is contemplated in sub-sections 1 and 3, though under different contingencies. Similar is the position in regard to clause (b) or even clause (c). But clause (d) deals with a much wider area. The court has jurisdiction to deal with any question of priorities or any other question whatsoever, whether of law or fact, which, may relate to or arise in the course of winding up of a company. Similar is the position in regard to clause (b) or even clause (c). But clause (d) deals with a much wider area. The court has jurisdiction to deal with any question of priorities or any other question whatsoever, whether of law or fact, which, may relate to or arise in the course of winding up of a company. It appears to us that whether a charge claimed by a secured creditor is void against the Official Liquidator or the creditors and whether the charge can be enforced within the winding up or outside and whether one creditor can enforce a charge which is valid against the company and void against the Official Liquidator and creditors to the detriment of the general body of creditors are certainly questions which relate to or arise in the course of winding up of a company. If that be so, the matter dealt with in these petitions falls squarely under clause (d) of subsection (2) of section 446 of the Act. The Liquidator is therefore entitled to the main relief claimed by him in M.C.A. 11/83. In this view, it is unnecessary to grant any relief in the other M.C. As. The final decree proceedings can continue, subject to this order. The M.C.As. are disposed of declaring that the charge created by the company in favour of the first respondent against the land, buildings and machinery of the company set out in the preliminary decree in O.S. 169/80 on the file of the Sub Court, Cochin is void against the Official Liquidator and the creditors of the company and further declaring that the preliminary decree and judgment there-in are not enforceable against the assets of the company not mentioned in the register of charges viz., in regard to the land, buildings and machinery of the company and restraining the first respondent from proceeding against those assets in the final decree proceedings. In the circumstances, there will be no direction as to costs.