EMPEROR Vs. SATISH CHANDRA GHOSH

JUDGEMENT

(1.) I reject this reference in the sense that I cannot agree with the view of the Sessions Judge. As at present advised I think that the share-holders can by extraordinary general resolution appoint a liquidator by accepting the nomination of the directors. That is only one way of making their own selection. But it is not necessary to decide this, and I do not decide as a matter of law whether the appointment was good or bad. I think the question whether the appointment was good or bad is immaterial. The applicant was in fact appointed. He accepted the appointment and he acted in the capacity of liquidator, He was de facto liquidator if not de jure liquidator. Nobody else is suggested to have been liquidator, and the object of the provision is (I am saying nothing against this gentleman, who has behaved with propriety so far as I can see) to prevent a liquidator from acting as such with some sinister object, and then, after the mischief has been done, turning round and saying that he had not been legally appointed. The object of the Legislature was to have a definite record in the public office of the Registrar of the person who is for the time being supposed to have been legally appointed and who is actually acting as a legally appointed liquidator. Therefore, however imperfect a man may consider his appointment to be, if he is nominally liquidator and acts as such, he must carry out the duties as well as exorcise the rights of a liquidator, and included in those duties is making a return of his appointment. I quite see the technical difficulty in filling up the form in this particular case on account of the manner in which his appointment was made. I should have thought that a pleader, which this gentle-man is, might have got over the difficulty. But he did the next best thing, He consulted the Registrar and finally finding himself in a fix he tried to retire from his position. But a man who is appointed must give notice of his appointment and obtain his retirement in a proper manner, and give notice of his retirement also. The net result is that he was actually a liquidator and in default. But it was an unnecessary proceeding to issue a summons against him. Under the circumstances the Registrar had notice of the person who had been appointed and was actually in correspondence with him about his appointment. I think a nominal penalty would have been sufficient under the circumstances. I reduce the penalty to one anna. On the other hand, it must be clearly understood that a man is not a judge in his own case, and if he accepts his appointment, ho must give notice of it according to law. If he does not do so, unless there is some bond fide excuse in the nature of a misunderstanding, such as this was, he will be liable to penalties. Any fine in excess of one anna, if paid, must be refunded.