BALYGUNGE REAL PROPERTY AND BUILDING SOCIETY LTD Vs. STATE
HIGH COURT OF CALCUTTA
IN RE : BALYGUNGE REAL PROPERTY AND BUILDING SOCIETY LTD.
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U.C.Law, J. -
(1.)In these four applications the two main questions that fall for my determination are (1) Whether the order made on 18th January 1960 can be recalled, vacated, set aside or modified by this Court and (2) whether the applicants are entitled to the inspection of the file of the proceedings of the liquidation and the statement of the Liquidator which accompanied the ex parte summons in form No. 109. These applications were heard and argued together and the learned counsel appearing for different applicants agreed that one judgment should cover them all. The questions arise in this way:--
(2.)On 9th January, 1960, the Official Liquidator of the above company took out a summons in form No. 109 as is required under Rule 243(2) of the Companies (Court) Rules 1959 hereinafter referred to as the Company Rules and applied ex parte under Rule 243(1) for private examination, inter alia, of the above named applicants under Section 477 of the Companies Act, 1950. The summons was in accordance with Rule 243, Sub-Rule (2) of the Company Rules accompanied by a statement signed by the Official Liquidator setting forth the facts upon which the application was based. It appears that on 3 8th January 1960 G.K. Mitter, J., who heard this ex parte summons upon hearing the Attorney of the Official Liquidator and upon reading the order of winding up of the company dated 8th January 1958 and the statement of the Official Liquidator with the annexure thereto passed a order in form No. 110 of the Company Rules that the above applicants amongst others be summoned to attend Court on 22nd March 1960 at 10-30 a.m. for the purpose of being examined under Section 477 of the Companies Act concerning promotion, formation, trade, dealings, property, books, papers and affairs of the company and the said persons be required to bring with them books and papers as mentioned in the said order. The said order was duly drawn up and completed. Pursuant to the said order a summons in form No. III of the Companies Rules was issued on 8th March 1960 and was duly served on these applicants. Upon service of the summons as aforesaid on these applicants, they have respectively now applied inter alia for (1) setting aside or modifying or recalling or vacating the order dated 18 January 3960, and (2) for inspection of the file of the pro-ceedings of the liquidation and the statement of the Official Liquidator.
(3.)With regard to the first prayer it is contended that even though the order of 18th January 1960 has been drawn up and completed, 1 have jurisdiction to set aside, modify, vacate or recall the order as a Judge presiding over the Company Court because on general principle if an ex parts order is passed against a person and the person is affected thereby he is entitled to come before the Court and have the order set aside; and further that no order should be made in favour of one party against and to the prejudice of another, unless the other had an opportunity of showing that it should not be made; and next it is contended that Rule 243, Sub-rule (1) of the Company Rules under which the Official Liquidator made the application is ultra vires Article 14 of the Constitution of India, in that it provides that the Official Liquidator may apply ex parte thus giving him an unfettered discretion to apply ex parte or upon notice without such discretion being in any way guided.
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