Decided on January 10,1992

A Stock And Co. Ltd., Appellant
ABC Respondents


Ruma Pal, J. - (1.)The Court : A Stock and Co. Ltd went into liquidation on 16.9.86. On 16.9.91, the official' liquidator took out an application against, amongst others, the respondent No. 3 under section 543(1) of the Companies Act, 1956. That application was by way of Judge's Summons and was made returnable on 7.10.91. On 7.10.91, the respondent No. 3 appeared and prayed for time to file an affidavit. That was granted. The respondent No. 3 had filed an affidavit in opposition raising a preliminary objection to the initiation of proceedings under section 543 against him. At this stage, the Court is not concerned with the merits of the respondent No. 3's contentions. What is at issue is the right of the respondent No. 3 to file an affidavit in opposition at all. This order is, therefore, limited only to that question.
(2.)The matter appeared in the list of adjourned motions after the filing of affidavits. It was then contended by the official liquidator that the procedure followed was incorrect. It was submitted that after the summons has been taken out on the returnable date, the Court is bound to give directions for filing points of claim and defence under rules 260 and 261 of the Companies Court Rules. It is stated that the word 'may' used in section 543 and rule 261 should be read as 'shall'.
(3.)It is contended that the Court's discretion to permit or not to permit misfeasance proceedings to be filed is to be exercised when the summons is taken out. Once that leave is granted, the Court can only give directions for the hearing of the proceedings on the return- able date.

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