NEW ERA MANUFACTURING CO LTD Vs. STATE

JUDGEMENT

(1.) Notwithstanding that there are no provisions in Chap.2 of Part 7 of the Companies Act (relating to a winding up by the court) corresponding to S.491 and 505 in Chap.3 (relating to a voluntary winding up) I should think that the directors of a company cease to function the moment a liquidator is appointed under Chap.2. If the appointment is by virtue of S.449 their powers are determined once and for all; if it is under S.450(I) their powers are suspended for the duration of the appointment. (See Ghosh 11th Edn. Note 1436 at p. 931 and the cases referred to therein).

(2.) The power and the duty of calling a meeting under S.168 of the Companies Act is, by the articles of this company, cast upon the directors. They and not the liquidator would be the officers in default under S.168 and it is they and not the liquidator that have to lay the annual account and balance sheet before the company in general meeting under S.210. It is obvious that the liquidator, whether provisional or otherwise, has not the power and is under no duty either to convene a meeting under S.166 or to lay the account or the balance sheet under S.210. In a voluntary winding up, the meetings under S.496 and 508 take the place of the meetings under S.166. And, when a liquidator is appointed under Chap.2 of Part 7, the court takes the place of the company in general meeting, the accounts laid before it under S.462, and in the case of a winding up, also the statement laid under S.551, taking the place of the account and the balance sheet laid under S.210.

(3.) I do not think that, so far as this matter is concerned, it makes any difference whether the appointment is of a liquidator in winding up by virtue of S.449 or of a provisional liquidator under S.450(1). In either case the powers of the directors cease, in the former permanently, in the latter temporarily. A provisional liquidator is as much a liquidator as a liquidator in winding up - in fact the name, provisional liquidator is only a convenient label; the appointment under S.450(1) is as liquidator though provisionally. Under S.450(3) he has the same powers and to the extent these powers imply duties, the same duties as a liquidator in winding up, and the circumstance that S.450(3) and (4) and 456(1) and (1A) speak of the liquidator as distinct from the provisional liquidator does not mean that (unless of course the context so requires) provisions which speak only of the liquidator do not include a provisional liquidator within the scope of that word.