SATISH CHANDRA GHOSH Vs. EMPEROR

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 lie 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 whole scheme and object of the provision is (I am saying nothing against this gentleman as he has behaved with propriety as far as I can see) to prevent a liquidator from acting as such collusively, accepting the appointment with some sinister object, somebody else being behind the scenes, and, after the mischief has been done, turning round and saying that he had not been legally appointed. The whole object of the Legislature. is 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, I think, however imperfect a man may consider his appointment to be, if he is nominally a liquidator and acts as such, he must carry out the duties as well as exercise 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, as this gentleman is, might have got over the difficulty. But he did the next best, thing. He consulted the Registrar arid 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 way and give notice of his retirement also. The net result is that he was technically a liquidator. But it was an unnecessary proceeding to issue a summons against him at all. 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 one anna would have been a quite sufficient penalty under the circumstances. I reduce the penalty, in this case to one anna. I do not think the circumstances justified a proceeding at all. 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, he must give notice of it according to law. If he does not do so, unless there is some bona 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.