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TMI Blog2019 (9) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed against the order dated 8.7.2019 passed in Company Petition No. 1/2012. The impugned order is in the following terms: "The present company petition was admitted on 05.07.2002 since when it is listed time and again for different purposes. Learned counsel for the petitioner informs that no Official Liquidator has been appointed yet. In the interest of justice, this Court directs for appointment of Shri Sitaram Gupta as OL in terms of Sec. 448 of Company Act, 1956. The OL is directed to take necessary steps and to exercise its statutory power under the Company Act, 956 and Rule framed thereunder to assist this Court to reach this petition to its logical end. Let copy of this order be served to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (b) approved by the Central Government for those appointed under clause (c) of sub-section (1) in accordance with the rules made by it in this behalf. (3) Where the Official Liquidator is an officer appointed by the Central Government under clause (c) of sub-section (1), the Central Government may also appoint, if considered necessary, one or more Deputy Official Liquidators or Assistant Official Liquidators to assist the Official Liquidator in the discharge of his functions, and the terms and conditions for the appointment of such Official Liquidators and the remuneration payable to them shall also be in accordance with the rules made by the Central Government. (4) All references to the "Official Liquidator" in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is urged that the appellant is not afforded any opportunity of hearing, nor the reasons are recorded dispensing the service of notice which makes the order vulnerable and de hors the mandate of sub-section (2) of Section 450 of 1956 Act. It is urged that the drastic action of appointment of liquidator ought not to have taken recourse as there is no complaint of any mismanagement, nor it is insolvent. 6. Reliance is placed on the decision in Virendrasingh Motilalji Bhandari and others Vs. Nandlal Bhandari and sons, Pvt. Ltd. Indore, 1978 M.P. L.J. 772; wherein, it is held that the appointment of a provisional liquidator is a drastic measure and should not be restored to except in special circumstances, i.e. in cases of urgency. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e's Bank of India Ltd. Vs. Narain Das, AIR 1916 Lahore 117, The Punjab Pictures Ltd. V. Jhabar Mal, AIR 1949 East Punjab 139. In the matter of Northern Airways Ltd., AIR 1949 Lahore 9. In the matter of the Gaya Sugar Mills Ltd., AIR 1950 Patna 237. 24. Both, on authority and principle, a provisional liquidator is not, in general, appointed before the hearing of the petition for winding up unless the Company is shown to be insolvent or unless the petition is presented by the Company itself or shown to be unopposed. In re Gaya Sagar Mills Ltd., (supra), Shearer J. observed: "It may be that that would justify the making of a winding up order even if a majority of the share-holders are opposed to it. But a finding of fraud c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or even without issuing notice to the Company Concerned, however, for that incumbent it is for the Company Judge to have recorded reasons which are conspicuously absent in the case at hand. 8. Further contention on behalf of respondent that the procedure prescribed under section 450 of 1956 Act and the Rules applies at initial stage of proceedings is taken note of and rejected at the outset. Fair reading of section 450 of 1956 Act does not contemplate that pendency of the petition under sections 433 and 434 of 1956 Act, the procedure is to be given a go bye. Even the decision in Piramal Financial Service Ltd. Vs. Reserve Bank of India; (2001) 104 Company Case 299 (Guj.) is of no assistance, as it is borne out from the said judgment that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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