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Issues Involved:
1. Competency of the appeal due to non-impleading of the Company and the Official Liquidator. 2. Merits of the compulsory winding-up order versus voluntary liquidation. Detailed Analysis: Competency of the Appeal: The primary issue was whether the appeal was incompetent because neither the Company nor the Official Liquidator was impleaded as a party. The dissentient director argued that both were necessary parties, and the absence of their inclusion should result in the dismissal of the appeal. The Court noted that all directors-shareholders, who are parties to the appeal, substantially represented the Company. The creditors also appeared, and the Special Official Receiver, as Official Liquidator, attended two hearings and was permitted to address the Court as amicus curiae. The Court found that the Company was fully represented before them by its directors-shareholders. The Court examined various precedents, including the Full Bench decision in Bharat Insurance Co. Ltd. v. Peoples Bank of Northern India Ltd., which dealt with the necessity of the Company as a party in a petition for leave to appeal to the Privy Council. However, this was not directly applicable to the present case. The Court also considered Rameshwar Das v. Official Receiver, Delhi, which dealt with the necessity of including the name of the insolvent in an appeal under the Provincial Insolvency Act. The Court held that the Official Liquidator was not a necessary party in appeals against winding-up orders, similar to how an Official Receiver is not required in insolvency appeals. The Court concluded that the appeal was competent despite the non-impleading of the Official Liquidator, as the Company was substantially represented by its directors-shareholders. The Court emphasized that while it is desirable for the Official Liquidator to be made a party to prevent possible collusion and ensure all necessary facts are presented, it is not a mandatory requirement in this case. Merits of the Compulsory Winding-Up Order: The learned Company Judge had ordered the compulsory winding up of the Company to ensure the speedy payment of debts, believing that the creditors would be paid in full and possibly a substantial surplus would remain. The appeal was initially opposed by the creditors and the dissentient director, but compromises were reached, and all creditors expressed satisfaction with the payments made by the voluntary liquidators. The dissentient director continued to oppose the voluntary liquidation, citing ongoing misfeasance proceedings against other directors. However, the Court noted that misconduct was not the original ground for supporting the creditors' petition for compulsory winding up. The Court observed that since all creditors were now satisfied with the voluntary liquidation, there was no reason from their perspective to continue with the compulsory winding up. The Court found that the voluntary liquidation, accepted by all creditors, should be allowed to proceed. Conclusion: The Court accepted the appeal, setting aside the order for compulsory winding up and allowing the voluntary liquidation to continue. The parties were directed to bear their own costs, and the matter of the Official Liquidator's remuneration was left to the Company Judge to decide.
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