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TMI Blog1954 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant before the learned Judge in chambers was the president of the board of directors of the bank at the time of the liquidation. He was elected to that office in 1938 and continued in it till 1947. The official liquidator applied in Application No. 1800 of 1949 for public examination of the appellant along with others, directors and other officers, under section 196 of the Indian Companies Act. On 7th June, 1949, Rajagopalan J. passed an order ex parte granting the application. On receiving notice of this order, the appellant filed an application (No. 2048 of 1949) for vacating the stay order, or in the alternative, for postponement of the public examination till the disposal of a criminal case which was then pending against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (No. 2226 of 1950) under section 235 of the Indian Companies Act. This application they had to file because otherwise an application for misfeasance would have become time-barred, the provisional liquidators having been appointed on 15th August, 1947. A similar application was also filed by a creditor (Application No. 3667 of 1950). After final termination of the criminal proceedings the liquidators again moved the court in Application No. 4338 of 1952 for the public examination of the appellant and other persons. Ramaswami Gounder J. passed an order on that application on 15th October, 1952, directing the public examination to continue. The appellant again filed another application to vacate the order directing public examination or in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit of documents ; but the court refused an application of the liquidator for production of documents by that company or for the examination of the company's secretary on interrogatories on the ground that the application was premature. The liquidator then obtained an order under section 115 of the Companies Act, 1862, for the examination of the secretary of that company before an examiner. When an examination was proceeding in pursuance of this order, the secretary refused to answer a question. It was held that the witness was justified in refusing to answer that question because the action of the liquidator in obtaining an order under section 115 was in effect circumventing an order of court in the action. Two observations fall to be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. That is an inquisitorial power, which may work with great severety against third persons, and it seems to me to be obvious that such a section ought to be used with the greatest care, so as not unnecessarily to put in motion the machinery of justice when it is not wanted, or to put it in motion at a stage when it is not clear that it is wanted, and certainly not to put it in motion if unnecessary mischief is going to be done or hardship inflicted upon the third person who is called upon to appear and give information." It is quite clear that these observations relate to the case of public examination of a third party and not to that of a person like the present appellant, a responsible officer of the company. In Metropolitan Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the misfeasance application in August, 1950. But that fact should not go against them. It must not be overlooked that if the public examination could not be held till now, it was entirely due to the conduct of the appellant and others, who were objecting to it, pending this proceeding or that. It does not lie in their mouth now to say that there should be no public examination whatever. Having successfully escaped such examination so far, the appellant and persons like him cannot now turn round and practically found a right on their own default. The learned Judge in our opinion exercised his discretion properly in directing public examination of the appellant. It appears that Ramaswami Gounder J. has made an order that the misfeasance ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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