TMI Blog1948 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that the petition was prepared and signed by the petitioner on the 5th of December, but was actually instituted in this Court on the 8th. It came up before a learned Judge in the presence of the petitioner's counsel on the 9th and the following order was made: "Prays that at least a month's time be granted as he wishes to put in further material to complete the petition. To come up after the whiter vacation." The Court remained closed first for Christmas vacation and then for the winter vacation from the 24th of December, 1947, to the 15th February, 1948, both days inclusive and reopened on the 16th February. On the- 25th February, the petitioner put in an affidavit and produced a few documents. The petition was placed before a le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than the petitioner, entered into a secret arrangement among themselves with a view to place the entire management and control of the company in the hands of Bhatnagar, that they deprived the petitioner of the sum of Rs. 60,000 which was payable to him under the terms of the agreement, that on this the petitioner brought a suit against the company for recovery of the balance of the price of his picture, that during the pendency of that case the High Court of Lahore while deciding an appeal arising out of it gave certain directions to the company which it had not complied with fully, that in spite of the fact that the majority of the shareholders were with the petitioner, Bhatnagar and the other directors who belonged to his clique had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial liquidator or official liquidators. (2)The Court may make such an appointment provisionally at any time after the presentation of a petition and before the making of an order for winding up, but shall before making any such appointment give notice to the company, unless for reasons to be recorded it thinks fit to dispense with notice." Counsel argued that according to sub-section (2) before the Court appoints a provisional liquidator it is bound to give notice to the company and if it is of opinion that the notice should be dispensed with it should record reasons in support, of it. In view of the fact that the word used in the sub-section is "shall" I am inclined to think that the counsel's contention is correct and since the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel that even on merits the petitioner had not brought any material on record which would justify the appointment of a provisional liquidator at this stage. After hearing the parties' counsel at considerable length and on going through the petition, the affidavit and the few documents that the petitioner produced on the 25th February, I am of the opinion that this contention must also prevail. Serious though some of the allegations contained in the petition were, in my view, none of them justified the appointment of a provisional liquidator. It is not denied that the company had all along been functioning and was carrying on business in the ordinary course. Placing the entire management and the conduct of such a company in the hands of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint a provisional liquidator as a matter of course, on the presentation of the petition. But where there is an opposition to it, I never do, because I might paralyse all the affairs of the company, and afterwards refuse to make the winding up order at all. But when the directors themselves apply, or do not oppose the winding-up, then I appoint the provisional liquidator." I have mentioned above, that though the petitioner stated a number of facts in support of his prayer for the winding up of the company so far as the appointment of a provisional liquidator is concerned, he alleged only two things, one, that accounts would be tampered with and second, that such money and property as was in the hands of the company would be misappropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impression is that the anxiety of the petitioner is to secure the payment of the money that is said to be due to him for the price of the picture "Pehli Nazar" and his efforts to have the company placed in the charge of a provisional liquidator is to exert undue pressure upon the directors. He adopted similar tactics when he instituted his previous civil suit at Lahore but failed in them. Accordingly I would accept the appeal and set aside the order of the learned Single Judge appointing the provisional liquidator. Though I am inclined to think that the principal reason why the order appealed from was made without notice to the company was that the petitioner's counsel, either deliberately or otherwise, did not bring to the notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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