- (1.) The short point involved in this appeal is a point of first impression. It has arisen in the following way.
(2.) The Appellant, Dr. Sailendra Nath Sinha, was one of the directors of the Bank of Commerce Ltd., now in liquidation. After the winding up order had been made, the Official Liquidator commenced a proceeding against the Appellant and several of the other directors of the Bank under Section 235 of the then Companies Act which corresponds to Section 543 of the present statute. While that proceeding was pending, the Official Liquidator made an application under Section 45H(2) of the Act, praying for an attachment of a large number of properties standing in the name of the Appellant himself as well as in the name of his wife, mother-in-law, daughters and an infant son. The application was based mainly on the Appellant's own evidence given in the misfeasance proceedings as to the sources of his income and its amount and the case made by the Official Liquidator was that the income of the Appellant could not explain his wealth and that the properties, of which he was seeking attachment, were all properties acquired from the funds of the bank. The valuation of the properties was given as Rs. 11,65,000. The reason for making the application was stated to be an apprehension that in the event of a decree being passed against the Appellant in the misfeasance proceedings, he was likely to dispose of all those properties in order to defeat and delay the realisation of the decretal amount from him. The material prayers in the petition were as follows: (1) That the properties belonging to Dr. S.N. Sinha or his benamdars, particulars whereof are set out in the schedule hereto and marked with the letter "A", be forthwith attached. (2) An interim order in terms of prayer (a) above.
(3.) The application was made ex-parte and it appears from the order, as drawn up, that only the application and the affidavit affirmed in its support by one Hem Chandra Sen Gupta, an Assistant of the Official Liquidator, were read and only the Advocate appearing for the Official Liquidator was heard. Although the application included a prayer for an interim order, the learned Judge did not in fact make any interim order in the sense that he kept the application pending, making only an order for the time being and deferred finalisation of the order till the disposal of the application. Instead, he made an order in terms of prayer (1) of the petition, but while doing so, he directed the Official Liquidator to serve a copy of the minutes of his order on the parties affected thereby and gave liberty to those parties to apply for having the order vacated on proper notice to the Official Liquidator. The part of the order by which those further directions were given has been thus expressed in the order, as drawn up: And it is further ordered that the said applicant do serve a copy of the minutes of this order, duly signed by an officer of this Court, on the parties affected by this order and that such parties be at liberty to have this order vacated on proper notice to the said applicant.;