S. Swarn Singh, Liquidator Goswami Electric Co-operative Press vs Tota Gir and Another

Teja Singh, C.J.—The facts giving rise to this revision petition may be shortly stated:

The Goswami Electric Press Ltd. was registered under the Patiala Cooperative Societies Act. Owing to certain complaints made against the society the Registrar cancelled its registration u/s 39 of the Act and appointed one Mr. Hansraj Bohra, Assistant Registrar, the liquidator of the society. The Liquidator purporting to act u/s 42 of the Act sold the Press to one Prahlad Kishan and then applied to the Court of the District Judge for possession of the Press to be given to the purchaser. T.G. Goswami who was the Managing Director and the Chairman of the defunct society put in objections to the application of the Liquidator and contended that the sale by the Liquidator to the purchaser was not legal and accordingly the Civil Court could not deliver possession to him. The District Judge accepted the objections and holding that the sale by the Liquidator being without authority, he could not apply for the enforcement of his order; Against the order of the District Judge the Liquidator has preferred this revision petition.

Though the respondent''s counsel has not raised any objection regarding the competency of the revision petition, we are inclined to think that since the application was made by the Liquidator to the District Judge u/s 42, Sub-section (5), Clause (a), the order of the District Judge should be regarded as an order made by him while executing his own decree and'' accordingly that order was open to appeal and the revision was not competent. Unfortunately both the counsel are hot prepared on this point and accordingly instead of rejecting the revision petition on a technical ground, we would like to dispose of it on merits.

The question is whether it was within the powers of the Liquidator to sell the Press himself. Mr. Lachhman Dass counsel for the Petitioner relies upon Section 48 Sub-section (1) which enumerates the powers of the Liquidator. These powers include inter alia the power to give such directions in regard to the collection and distribution of the assets of the society as may appear to him to be necessary for winding up the affairs of the society. Mr. Lachhman Dass argues that it was the duty of the liquidator to realise the assets of the society and since with a view to realising the assets it was necessary for him to sell the Press, it was open to him to give directions that the Press be sold and then to sell the Press himself. The relevant clause of Section 42 is Clause (e) of Sub-section (1), but that clause gives the liquidator the power only to give directions in regard to the collection and distribution of the assets. This means that if the liquidator forms the view that assets of the society have to be sold all that he can, do is to record a direction to that effect and then apply to the Civil Court under Clause (a) of Sub-section (5) of Section 42 to give effect to that direction. Mr. Lachhman Dass drew our attention to the analogous provision of the Insolvency Act and the Companies Act which related to the powers of the official receiver in one case and the liquidator in the other case, but both the provisions give express powers of sale. In case of an official receiver Section 59 clearly lays down that he has the power to realise asset and also to sell the property of the insolvent As regards the powers of a liquidator of the Company Section 179 lays down that the official liquidator shall have power with the sanction of the Court inter alia to sell the immovable and movable property of the Company by public auction or private contract etc. If the intention of the Legislature was that the liquidate appointed by a Registrar for a cooperative society should also possess the same power there was nothing to prevent them from making a provision of this kind u/s 42, but instead of doing this they used the word "directions" and then laid down in Sub-section (5) the the orders of the liquidator were to be enforces by a civil Court on his application. Comparing the words of Section 42, Patiala Cooperative Societies Act with those of Section 59, Insolvency Act and Section 179, Companies Act, we have left no doubt in our minds that the legislature did not intend that the liquidator of a Cooperative society should have the power to sell the pm perty of the society. But even if it be can sidered that it was a case of lacuna as a Court we have only to give effect: to the words the enactment which applies in this case and since Section 42 does not say in so many words that the liquidator has the power to sell the property of the society, we cannot but hold that the view taken by the District Judge was correct.

The result is that the revision petition fails and is dismissed. In view, however, of the fact that a very important objection that could have gone to the very root of the revision petition was not taken by the respondent''s counsel, we refuse to award costs in his favour.

Gurnam Singh, J.

I concur with the order proposed.