P. D. KUDAL, J. - (1.) IN S. B. Company Petition No. 15 of 1979 under Sec. 392 of the Companies Act, 1956, an order was passed on 19th October, 1979. The Official Liquidator feeling aggrieved sought permission of this Court to file an appeal against this order; The application for seeking permission was submitted on 25th October, 1979. The question of granting permission came up before the court for consideration on 31st October, 1979. The office submitted this application for consideration on 29th October, 1979 before this court. Before this petition dated 25th October, 1979, could be considered the Official Liquidator had already filed an appeal against the order of this Court dated 19th October, 1979. The permission which was sought was ex-post-facto permission. The Official Liquidator did not obtain sanction from this court prior to the filing of the appeal.
(2.) ON 31st October, 1979, four points were framed for consideration : - (a) Whether the Official Liquidator is competent to file an appeal against the orders of the Court ? (b) Whether any action can be instituted or an appeal can be filed before obtaining permission of the Court ? (c) Whether any post-facto sanction can be granted when the appeal has already been filed ? (d) Whether before granting sanction to file an appeal the other parties are also to be heard in the peculiar circumstances of the case ? Notice of framing of these points was issued to the Official Liquidator and to the Management of M/s. Golcha Properties (P) Ltd. Learned counsel for the parties have been heard. Mr. Rastogi appearing on behalf of the Official Liquidator has placed reliance on Dr. Sailendra Nath vs. Jasoda (1 ). This is a case under the Companies Act, 1913. Section 179 deals with the powers of the Official Liquidator to institute or defend proceedings with the sanction of the court and section 237 (1) deals with the powers of the court to give direction for prosecution of the delinquent directors etc. But neither section 179, nor section 237 (1) indicates that if the Liquidator takes action without sanction of the Court, the action would be illegal or invalid or it would invalidate a prosecution. This section 179 of the Companies Act, 1913 deal with the case of launching a prosecution against a defaulting director and is distinguishable on facts with the present case. Reliance was placed on Loom-Chand vs. Official Liquidator (2 ). wherein it has been held that in the absence of specific terms that sanction should be previously obtained, sanction required by the Official Liquidators could be given by the concerned authority at any time, even after the proceedings have actually been instituted or even in the course of the proceedings. This case was also with reference to section 179 of the Companies Act, 1913. Reliance was placed on Discount Bank of India vs. Triloki Nath (3) wherein it was held as under : - "in a winding up the liquidator acts not merely for creditors but for contributor's and for the company also. A liquidator is an agent employed for the purpose of winding up of the company. In some respects he is a trustee; but he is not a trustee for each individual creditor. His principal duties are to take possession of assets, to make out the requisite lists of contributor's and of creditors, to have disputed cases adjudicated upon, to realise the assets subject to the control of the court in certain matters and to apply the process in payment of the company's debts and liabilities in due course of administration, and, having done that, to devide the surplus amongst the contributor's and to adjust their rights Under Sec. 179 he can in statute to defend any suit with the sanction of the court and he can take any other legal proceedings, civil or criminal also with such sanction. " Reliance was also placed on Krisharao vs. the State (4) wherein it was held as under : - "it is true that the Official Liquidator is not a party to the liquidation proceedings, but the official liquidator is appointed to carry on the Liquidation proceedings in the interests of the general body of share-holders. He is the court's nominee as an officer of the court to carry on the liquidation proceedings under the directions of the court. "
(3.) ON behalf of M/s. Golcha Properties (P) Ltd. , a preliminary objection has been taken. It has been contended that the appeal was filed without obtaining prior permission and sanction from the court. It has been further contended that the authority of the Official Liquidator had come to an end except for the purpose of distribution of the outstanding claims of the creditors and recovery of his costs, charges and expenditures as may be determined by the Court. In support of this contention, reliance was placed upon the scheme as sanctioned on 15th December, 1975 in S. B. Company Petition No. 3 of 1971. Reliance was placed on clause 12 of scheme which reads as under : - "the above scheme becomes operative. Winding up order of the High Court of Rajasthan, Jaipur shall be vacated and the authority of the Official Liquidator shall also cease to function except for purposes of disbursements as contemplated in clause (i) above and further upon discharge of the Official Liquidator as stated in Clause IV above, the management of the business including the entire assets, movable and immovable, of the company, shall be handed over to the former Directors immediately. " It was further contended that the meeting, in which the above compromise was arrived at, was attended by the Official Liquidator apart from other persons. The Official Liquidator was a party to the meeting which adopted unanimously the scheme which was sanctioned by this Court on 15th December, 1975. It was also contended that the scheme as sanctioned contemplates that as soon as the amount mentioned in Clause III of the Scheme is paid, the Official Liquidator shall immediately hand over the complete property of the authority including its movable and immovable properties to the Ex. Directors as provided hereinabove. The Official Liquidator shall for purposes of this scheme, ever retain the amounts that may be required to be paid to the creditors and the Income-tax Department as provided in Clause (I) for purposes of disbursements to the creditors and to the Income-tax Department. That an appeal before, the Division Bench was filed against the order of this Court dated 15/12/1975. This Division Bench Appeal was registered as D. B Special Appeal No. 4 of 1979. During the pendency of the appeal a special and independent arrangement/agreement had been arrived at between the Income-tax Department on the one hand and the sponsors of the scheme on the other for purposes of making payments to the Income-tax Department for their alleged dues to their own satisfaction. It was further contended that this arrangement / agreement as had been arrived at between the Income-tax Department and the sponsors was the subject-matter of consideration in the Company Petition No. 15 of 1979. The final order was passed on 19/10/1979. It was further contended that the scheme as sanctioned by this Court on 15/12/1975 and further modified on 19th October, 1979 has acquired a statutory force in view of the ratio decidendi laid down in Pramila Devi vs. People's Bank Ltd. , (5 ). It was also contended on behalf of the respondent Company that once the Company has gone out of liquidation the provisions relating to the winding up proceedings would no more be applicable in relation to the Company and its affairs. It was also contended that the Official Liquidator is at best an adjunct of the court and he has no power independent of the court to institute proceedings or file an appeal. Attention of the court has been invited to sections 448 451,452,455,456 (2), 457 (i) and (ii) and 459. Reliance was also invited to sections 460, 549 and 546. It was also contended that a perusal of the sections would show that the integral scheme of the Act is that the Official Liquidator is supposed to be under the direct supervision and control of the Company Judge. He has no over-riding power in himself. He cannot undo the wishes of the Company Judge, when they are reflected in the orders, which he passes. ;