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TMI Blog1974 (10) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 at Badnera and pass necessary incidental orders for handing over possession thereof to the authorised person. The short facts are that Vijay Manufacturing Co. Pvt. Ltd. is in liquidation pursuant to an order of winding up passed by this court on 7th September, 1973, and the official liquidator of this court is appointed the liquidator of the said company. The Union of India thereafter made an application, being Company Application No. 143/73, under section 15A of the said Act for obtaining necessary leave of this court to make investigation into the possibility of restarting the said industrial undertaking of respondent No. 1 in the interest of the general public and particularly in the interest of production of cotton textiles. By an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the management of the industrial undertaking may be handed over the authorised persons. Mr. R.A. Kapadia, who appears for respondents Nos. 4 and 5 and one M.N. Savani, has contended that such an applicants does not lie as a company application and the applicants should be directed to follow the appropriate procedure of taking out a notice of motion or filing a petition. On the merits, it is his contention that even after an opinion is formed by the Central Government it is in the discretion of the court whether to pass or not to pass an order under section 18FA of the said Act even though such a report has been made and an opinion formed by the Government. It is his contention that it is in the discreation of the High Court, on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther extension after 5 years is applied for, then under the proviso to sub-section (2) of section 18FA of the said Act a discretion is given to the High Court whether to extend the period and permit the authorized person to continue to manage the industrial undertaking or to exercise functions or control in relation to the concerned undertakings. In the proviso the expression used is "the High Court may make an order permitting the authorised person to continue to manage the incidental undertaking". Mr. Kapadia contended that if the expression "shall" in section 18FA of the said Act is held to be mandatory, then the section 18FA may suffer from the vice of being declared ultra vires under the Constitution. In this application no constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al liquidator to hand over the management of this undertaking to the authorised person in the manner provided for in section 18FA of the said Act. The official liquidator before handing over possession of the undertaking shall make a complete inventory of all the assets and liabilities of this industrial undertaking and deliver a copy thereof to the authorised person. I further direct the official liquidator that before handling over such possession by him to the authorised person he must receive all the costs, charges and expenses (except in regard to any proceedings that he might have taken as an official liquidator) incurred by him as the official liquidator till the date he hands over such possession. There will be no order as to costs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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