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Judgment
Mohta Anoop V., J.—The petitioners defendants 2 and 3/directors/guarantors of defendant No. 1-company (now L.Rs.) have challenged the interlocutory order (Exh. 16) passed in Special Civil Suit No. 1271/1990, thereby rejected an application u/s 446(1) and (3) of the Companies Act 1956 as admittedly, defendant No. 1-company has gone in liquidation and a liquidator has been appointed and thereby pray that Suit cannot be proceeded and be transferred accordingly.
2.Some necessary facts are:
On 11th October, 1990, Special Civil Suit No. 1271 of 1990 is filed by the State Bank of India and as stated above the said suit is filed, for the recovery of the amount of Rs. 1,35,400.4 lps.
On 27th November, 1992, written statement has been filed, by defendant No. 2 and defendant No. 3. In the written statement, inter alia, it is pointed out that since official liquidator has been appointed, in respect of the said company, therefore, the suit is not maintainable.
On 28th July, 1997, the application at Exhibit 16, was given by the petitioner herein. By the said application, it is prayed that the suit, may be stayed and may not be proceeded, and the suit may be transferred as contemplated, by Section 446(3) of the Companies Act.
On 6th August, 1997, the reply is filed by respondent No. 1-Bank. In the said reply, it is pointed out that although an official liquidator has been appointed no relief has been sought against the firm and the relief has been sought only against defendant Nos. 2 and 3 as the guarantors and hence the provision of Section 446(1) and 446(3) are not applicable.
On 19th December, 1997, the learned IVth Joint Civil Judge, Senior Division, Pune was pleased to dismiss the said application at Exh. 16 filed by the petitioner herein, on the ground that according to the learned Civil Judge, if the company has been impleaded, only as the formal party and no relief has been sought against the company, in the eventuality the provision of Section 446 will be attracted.
Admittedly, the main prayers in the Suit are against original defendants 2 and 3 and not against the company as they were directors of the company and but also guarantors with regard to the transaction in question with the plaintiff/ Bank.
The Bank can file Suit against the guarantors also for the recovery of money as per the transaction. In the present case, no relief is claimed against the company. Therefore, if there is no bar to recover the debt outstanding from the guarantors who are jointly and severally liable even in the absence of principal debtors, I am also of the view that considering the nature of the suit and the provisions under the Companies Act and the Indian Contract Act, the rejection of application need no interference as the order is within the frame work of law and the record. Merely because the company is in liquidator, the guarantors/directors of the company cannot be permitted/allowed to shirk their obligation and liability to pay the debt of the Bank, if case is made out. In the present facts and circumstances, the petitioners/debtors have already delayed the proceeding on this ground.
The writ petition is therefore dismissed with costs. The interim order also stands vacated accordingly.