The main legal point established in the judgment is that the appointment of a provisional liquidator is a drastic measure and should not be resorted to except in special circumstances, and the court's decision was based on the interpretation of the relevant sections of the Companies Act, 1956.

ORDER/JUDGMENT – Shri K. N. Gupta, learned Senior counsel with Shri R. S. Dhakar, learned counsel for the appellant.

Shri Praveen Surange, learned counsel for the respondents.

2. This appeal under section 10(f) read with section 483 of the Companies Act, 1956 and section 303 of the Companies Act, 2013 is directed against the order dated 8-7-2019 passed in Company Petition No. 1/2012. The impugned order is in the following terms :

“The present company petition was admitted on 5-7-2002 since when it is listed time and again for different purposes.

Learned counsel for the petitioner informs that no Official Liquidator has been appointed yet.

In the interest of justice, this Court directs for appointment of Shri Sitaram Gupta as OL in terms of section 448 of Company Act, 1956.

The OL is directed to take necessary steps and to exercise its statutory power under the Company Act, 1956 and Rule framed thereunder to assist this Court to reach this petition to its logical end.

Let copy of this order be served to Shri Ashish Sharashwat who normally appears for OL

List in the week commencing 29th July, 2019.”

Evident it is that the order has been passed by the learned Company Judge in purported exercise of powers under section 448 of Company Act, 1956 (for brevity “Act, 1956”) which envisages :

“448. Appointment of Official Liquidator. – (1) For the purposes of this Act, so far as it relates to the winding up of a company by the Tribunal, there shall be an Official Liquidator who –

(a) may be appointed from a panel of professional firms of chartered accountants, advocates, company secretaries, costs and works accountants or firms having a combination of these professions, which the Central Government shall constitute for the Tribunal; or

(b) may be a body corporate consisting of such professionals as may be approved by the Central Government from time to time ; or

(c) may be a whole-time or a part-time officer appointed by the Central Government :

Provided that, before appointing the Official Liquidator, the Tribunal may give due regard to the views or opinion of the secured creditors and workmen.

(2) The terms and conditions for the appointment of the Official Liquidator and the remuneration payable to him shall be –

(a) approved by the Tribunal for those appointed under clauses (a) and (b) of sub-section (1), subject to a maximum remuneration of five per cent of the value of debt recovered and realisation of sale of assets ;

(b) approved by the Central Government for those appointed under clause (c) of sub-section (1) in accordance with the rules made by it in this behalf.

(3) Where the Official Liquidator is an officer appointed by the Central Government under clause (c) of sub-section (1), the Central Government may also appoint, if considered necessary, one or more Deputy Official Liquidators or Assistant Official Liquidators to assist the Official Liquidator in the discharge of his functions, and the terms and conditions for the appointment of such Official Liquidators and the remuneration payable to them shall also be in accordance with the rules made by the Central Government.

(4) All references to the “Official Liquidator” in this Act shall be construed as reference to the Official Liquidator specified in sub-section (1), or to the Deputy Official Liquidator or Assistant Official Liquidator referred to in sub-section (3), as the case may be.

(5) The amount of the remuneration payable shall –

(a) form part of the winding up order made by the Tribunal;

(b) be treated as first charge on the realisation of the assets and be paid to the Official Liquidator or to the Central Government, as the case may be.

(6) The Official Liquidator shall conduct proceedings in the winding up of a company and perform such duties in reference thereto as the Tribunal may specify in this behalf :

Provided that the Tribunal may –

(a) transfer the work assigned from one Official Liquidator to another Official Liquidator for the reasons to be recorded in wr