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TMI Blog2018 (4) TMI 1868X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Liquidator. At the hearing, Mr. R. Raghunandan, learned Senior Counsel representing Mr. D. Narendar Naik, learned Counsel for the appellant, has fairly submitted that the appellant is not intending to press the Appeal to the extent it pertains to admission of the Company Petition. He further submitted that the order appointing the Official Liquidator as the Provisional Liquidator cannot be sustained for two reasons viz., (i) that the Petition for appointment of Provisional Liquidator can be entertained and an order thereon can be passed only after the admission of the Company Petition, but not along with the admission; and (ii) that neither any notice was issued nor any reasons, for dispensing with such notice or for appointing the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks fit to dispense with such notice." Rule 106: Appointment of Provisional Liquidator (1) After the admission of a petition for the winding-up of a company by the Court, upon the application of a creditor, or a contributory, or of the company, and upon proof by affidavit of sufficient ground for the appointment of a Provisional Liquidator, the Court, if it thinks fit, and upon such terms as in the opinion of the Court shall be just and necessary, may appoint the Official Liquidator to the Provisional Liquidator of the company pending final orders on the winding-up petition. Where the company is not the applicant, notice of the application for appointment of Provisional Liquidator shall be given to the company unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has issued any notice on the Application filed by the respondent for appointment of the Provisional Liquidator. 8. Sub-section (2) of Section 450 of the Act ordains that the Court shall not only give the Company a notice but also a reasonable opportunity to it to make its representations against the appointment of the Provisional Liquidator before such appointment is made. In our opinion, sub-section (2) of Section 450 of the Act is incorporated with the avowed object of allowing the Company to make, its representations before appointing a provisional liquidator, for, appointment of the Provisional Liquidator is drastic in nature like appointment of a receiver in respect of the property in a civil dispute. As rightly argued by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor should not be appointed. A provisional liquidator shall also not be appointed where the appointment is clearly against public interest." 11. In Himachal Grameen Sanchayka Ltd. and another v. Reserve Bank of India AIR 2002 HP 113 (supra), the High Court of Himachal Pradesh at Shimla held as under: "It is, no doubt, true that an action of winding up of the company is a serious one and appointment of provisional liquidator ought to be taken carefully and cautiously. It is also correct that, as a rule, before appointing a provisional liquidator, the court shall issue notice to the company and afford reasonable opportunity of making a representation." 12. Referring to the provisions of Section 450 of the Act, the Court further held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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