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TMI Blog1964 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... On June 18, 1963, an order was made by this court under section 478(1) of the Art on the report of the official liquidator for public examination of the respondents. This order was made ex parte. On January 25, 1964, the respondents Nos. 1, 3, 5 and 6 took out a summons for an order that the order made on June 18, 1963, for public examination of the respondents be discharged and that the respondents be exculpated from all charges made against them. This application came up for hearing before me on March 4, 1963. At the hearing of this application it was contended that the respondents should be heard before any order is made for their public examination. This application was opposed by the official liquidator on whose behalf it was contended that under the scheme of the Companies Act of 1956, and the Rules framed thereunder, there was no provision for giving notice and the order for public examination was made by the court ex parte on the report of the official liquidator. Upon hearing both parties this court had made the following order: "Order dated June 18, 1963, discharged. Liquidator to file further affidavit, if so advised by March 19, 1964 ; affidavit-in-opposition by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons all parties concerned are to attend the judge in chambers. Therefore, this is a summons to all parties who are interested. Mr. S. Sen also referred to the note in Palmer that such an application may be made ex parte. There is a similar comment in Buckley, 13th edition, page 566, at which, while dealing with section 270 of the English Act which corresponds to section 478 of the Companies Act of 1956, it is pointed out that an order for public examination may be made ex parte. Mr. M. M. Sen referred to the decision in In re Great Kruger Gold Mining Co.[1892] 3 Ch. 307 In this case a report was made by the official receiver and on that report North J. made an order on the application of the official receiver, made ex parte, that several persons were to be publicly examined. Thereafter one of the persons directed to be examined, took out a notice of motion for discharge of the order made by North J. This application was heard by Vaughan Williams J. Dealing with the question of the right of the persons to "come and intervene, the learned judge held at page 314 of the report [1892] 3 Ch. 307. "It is plain that it is the right of everyone, the absolute right of every one-and a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my view is far from saying that such applications must be made or should be made ex parte. That is what was contended by Mr. M. M. Sen on behalf of the official liquidator, namely, that the procedure laid down in the Rules enjoined that such applications should be made and must be made ex parte. I shall deal with our Rules later in this judgment. Mr. M.M. Sen also referred to another decision of Vaughan Williams J. in In re Trust and Investment Corportion of South Africa [1892] and In re Bertram Luipaard's Vlei Gold Mining Co. [1892] 3 Ch. 332. The same question came up for consideration before the learned judge who refused to direct an examination, and thereupon the matter again went up to the Court of Appeal. Lindley L.J. held that it was convenient that the order should be made ex parte and there was no injustice if the order was made ex parte. Lopes L.J. held that the application may be made ex parte and Smith L.J. agreed with that view. It will thus be seen that the majority view of the English Court of Appeal was that an application on a report by the official receiver might be made ex parte and that is the view which has been expressed in Buckley, 13th edition, page 566, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the official liquidator that the order made is contrary to the Act or the Rules or that such an order will create difficulties for the liquidator. Rule 137(2) clearly provides for notice being given on the notice board. If on such notice the respondents came to the court and applied for leave to file an affidavit and the court grants such leave, it cannot be said that the court has acted beyond its power under the Act or the Rules. Rule 137(2) is as follows: "Where the official liquidator makes a further report under sub section (2) of section 455, the Registrar shall fix a date for the consideration thereof by the judge and notify the date or. the notice board of the court and to the official liquidator." This rule is quite specific on the question of the notice to the public about the date of the consideration of the report by this court. Keeping in mind the observations of Vaughan Williams J. quoted above, that a person who is to be affected by the order to be made has a right to come to this court and say that the order would be an abuse of the power this court has or that the order would be oppressive, can it be said that the order on the report of the official re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard. If he wants to file an affidavit, he must get the opportunity to file the affidavit. I do not desire to say however that the official liquidator should give notice either by a judge's summons or by any other means individually or personally to the party against whom the order for examination is sought. Nor do I desire to say that the report should be supplied to the party otherwise than in compliance with the provision in the Companies Act 1956. Coming now to the order which was made by this court on March 4, 1963, it is to be noticed that there is nothing in the order which requires the official liquidator to give notice of the application to the respondents. Leave has been given to the liquidator to file an affidavit if he is so advised. Leave has been given to the respondents to file an affidavit-in-opposition and, similarly, to the official liquidator to file an affidavit in reply. The order made on June 18, 1963, for public examination of the respondent was discharged and this court directed that the hearing of the matter on the report should take place after the filing of the affidavits. I do not see, in this order, any difficulty for the official liquidator in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In support of this proposition Mr. Sen referred to a decision of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah [1955] 2 SCR. 1, 9 in which, Bose J. held : "...that our laws and procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them." In that case however the Supreme Court was considering the effect of section 105 of the Representation of the People Act of 105I. But although the observations quoted above were made in connection with that particular statute, in my view they are of general application. More particularly, that must be so, when the Rules framed under the Companies Act, 1956, have given to the party the right to a notice of the date when the report of the liquidator would he considered by the court. If the rules have given him the right to come to the court at the time when the matter is being- considered by the court, I do not see how it can be said that although an order is going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in my view, is a very serious omission. The party, against whom an order for public examination is going to be asked for, is entitled to the notice and he must have it. Neither rule 6 nor rule 33 provided any excuse for non-compliance with rule 137(2). Rule 6 merely provides that the practice and procedure of the court and the provisions of the Civil Procedure Code so far as applicable shall apply to proceedings under the Companies Act and the Rules thereunder. Rule 33 provides that service under the Rules shall not be deemed to be invalid by reason of any defect in the name or description of a person in the list of contributors or in petitions, summons, notice or other proceedings provided the court is satisfied that such service is in other respects sufficient. These two rules therefore have nothing whatsoever to do with the consequence of omission to comply with rule 137(2). Mr. M.M. Sen however contended that the matter was published in the daily list of this court under the Rules of the original side of this court and that is to be treated as sufficient compliance with rule 137(2). I cannot accept this contention. Notice of the date of hearing of the matter, when an order f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Company Ltd. [1935] 39 CWN. 1259, in support of the proposition that an order which has been drawn up but not completed or filed may be reconsidered by the judge and if necessary recalled. Mr. S. Sen however conceded that as a proposition of law it is sound and he was not disputing the jurisdiction and power of this court to recall, reconsider or modify an order made by this court before such an order has been perfected. But he contended that, on the facts of this case, no case had been made out for exercise of the inherent powers of this court to recall the order made. Mr. M.M. Sen also referred to another decision of this court in support of the same proposition in Padmabati Dasi v. Rasik Lal Dhar [1909] ILR. 37 Cal. 259. In my opinion this court undoubtedly has the jurisdiction to recall the order already made as the same has not yet been perfected. But on the facts of this case the inherent powers of this court should not and ought not to be exercised and the order made should not be recalled. Before concluding I should once again refer to the order sought to be recalled or set aside. On June 18, 1963, this court had made an order for public examination of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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