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TMI Blog2009 (10) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... ator gets only on an order being passed by the court to this effect and not by the discretion, conferred directly on the official liquidator under the statute. While for the present, we proceed with the examination of the appeal on merits, it is very necessary that the official liquidator becomes aware of this legal position henceforth and evinces commensurate awareness whenever appeals are filed by the official liquidator and in respect of the orders passed by the learned company judge to indicate that the appeal is either necessary or desirable to protect the interest of the community of creditors and shareholders. - O.S.APPEAL NO. 9 OF 2009 - - - Dated:- 27-10-2009 - D.V. SHYLENDRA KUMAR AND L. NARAYANA SWAMY, JJ. Deepak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and in this case the High Court. 4. Mr. Deepak has also drawn our attention to the provisions of section 457 of the Act indicating the powers of the liquidator. Mr. Deepak would submit that even while the official liquidator acts as a limb of the company court, he also has the dual responsibility of representing the company under liquidation, which though has been ordered to be wound up, nevertheless retains its independent and distinct identity as a legal person being a company and having not yet gone out of existence and in such circumstances, if it is found that there is a need for filing an appeal against an order, having regard to the duty cast on the official liquidator to protect the company which he represents, such an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company ensuring an equitable distribution of the remaining assets of the company. A company which as recognised by the court, is unable to carry on its affairs in a manner as proclaimed in its articles and memorandum and which is only required to be wound up and if so, unless the order sought to be appealed against is indicated to be an order detrimental to the interest of the community of creditors and shareholders, the appeal per se is not one which can be said to be tenable and at any rate at the instance of the official liquidator, for examination by this court, etc. 8. We find that while the statutory provisions of section 483 no doubt, provides for an intra-court appeal against any order passed during the winding up proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly acts as part of the management, in place of the board of directors of a company which is under liquidation and it is for the purpose of salvaging the assets of the company as indicated in sub-section (1) and for achieving this in an efficient manner, the official liquidator as indicated in sub-section (2) of section 457 is brought on the scene and therefore, to the extent that the official liquidator is required to function in a most efficient and proper manner in salvaging the assets of the company for the benefit of the community of creditors and the shareholders and for equitable distribution. The powers rather than duties and responsibilities are conferred and to this extent, one may infer an element of discretion in the official liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial liquidator under the statute. 11. Section 458 reads as hereunder : "458. Discretion of liquidator.-The [Tribunal] court may, by order, provide that the liquidator may exercise any of the powers referred to in sub-section (1) of section 457 without the sanction or intervention of the court : Provided always that the exercise by the liquidator of such powers shall be subject to the control of the [Tribunal] court." 12. The proviso is also significant to be noticed as whatever is done by the official liquidator, all actions and exercise of power by the official liquidator is always, subject to the control of the court. It means nothing could escape the attention of the court and the official liquidator should always function un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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