JUDGMENT Harington, J. - This is a petition by liquidators appointed in the voluntary winding up of a Company and a preliminary objection is taken on behalf of a gentleman who claims to be a creditor of the Company that the petition cannot be heard because the provisions of sec. 173 of the Indian Companies Act have not been complied with. There has been no voluntary winding up according to law. The appointment of liquidators is therefore a nullity and they have no locus standi to present the petition which is now before the Court. On behalf of the liquidators it is contended that even if it be assumed there were irregularities in the proceedings for the voluntary winding up, those irregularities are merely irregularities in the notice under which the meeting passing the resolution for voluntary winding up was held, and it is said, that notice was for the benefit of the shareholders, who could waive all irregularities in the notice-that in fact the irregularities were waived and therefore a person outside the Company cannot be heard to say that the liquidators were not properly appointed. Now the Company can be wound up voluntarily in accordance with sec. 173 of the Act, whenever the Company has passed a special resolution requiring the Company to be wound up voluntarily. In the present case a notice was given calling an extraordinary general meeting of the shareholders to consider the position of the Company and, if necessary, to pass a special resolution that the Company be voluntarily wound up and liquidators appointed, and then it went on to say that in the event of the said resolution being passed a special meeting would be held immediately after the extraordinary general meeting of the shareholders, confirming the same. Now a resolution passed in pursuance of that notice clearly does not comply with sec. 173, cl. (b), because the special resolution referred to under that clause is defined in sec. 77 of the Act, and an essential portion of the definition is that such resolution be confirmed at a subsequent general meeting held at an interval of not less than 14 days or more than one month from the date when such resolution was passed. In the present case no meeting to confirm the resolution was held at the interval prescribed by sec. In the present case no meeting to confirm the resolution was held at the interval prescribed by sec. 77 of the Indian Companies Act, and on the face of the notice it appears that it was intended to confirm a special resolution on the same day which would have the effect of preventing its being a special resolution in accordance with the terms of the sec. 77 of the Companies Act. The resolution therefore for winding up of the Company clearly does not fall under sec. 173, cl. (b). Then it is argued that on the face of it, as it was a bad notice with respect to a special resolution it must be taken as a good notice calling a meeting to pass an extraordinary resolution under cl. (c) of sec. 173. Cl. (c) provides "whenever the Company has passed an extraordinary resolution to the effect that it has been proved to its satisfaction that the Company cannot by reason of its liabilities continue its business and it is advisable to wind up the same." Now the notice in question is a notice calling a meeting to consider the position of the Company and, if necessary, to pass a special resolution that the Company be voluntarily wound up. The actual resolution passed thereon was that it was resolved in view of the statement made by the above-mentioned gentlemen (that refers to the statement of gentlemen who said that the Company could no longer carry on its business) that the affairs of the Company be voluntarily wound up and a liquidator be immediately appointed. Now it is argued by Mr. Das that that notice and the resolution passed thereon do not comply with sec. 173, cl. (c). In support of the proposition the case in Re. Silkstone Co. 1 Ch. D. 38 (1875) was cited. In that case it was held that a notice in terms very similar to the present notice was not a good notice under the section of the English Company's Act calling a meeting to pass an extraordinary resolution for the voluntary winding up of the Company. It is impossible for me to distinguish that case from the present case, and in my view the notice in this case must be held not to be a proper notice calling a meeting to pass an extraordinary resolution under cl. (c) of sec. 173. It is impossible for me to distinguish that case from the present case, and in my view the notice in this case must be held not to be a proper notice calling a meeting to pass an extraordinary resolution under cl. (c) of sec. 173. But in this case not only is the notice open to the objection which made the notice bad in the Silkstone case 1 Ch. D. 38 (1875), but it expressly states that it is a notice for the passing of a special resolution, and a "special resolution" has a meaning of its own. I think therefore the notice is bad, first, under the decision given in the Silkstone Co.'s case 1 Ch. D. 38 (1875) and, secondly, because it purports to call a meeting to pass a special resolution and on the face of it shows the person who called a meeting did not intend to confirm the special resolution according to law. For these reasons I think the notice is bad. Then it is argued that there has been a waiver, and assuming for the purpose of argument that the liquidators have been treated as though they were properly appointed by the shareholders of the Company, does that affect the case ? The liquidators ask for an order, affecting the rights of the gentleman who claims to be a creditor. Their power to obtain such an order depends upon statute. It appears to me that it is open to the gentleman whose rights it is sought to affect to dispute the statutory position assumed by the gentlemen who make a petition against him. In the absence of some authority showing that these provisions in the Companies Act can be waived it appears to me that it is open to the person against whom the petition is presented, whether the shareholders have waived any irregularities or not, to say that the liquidators have not been properly appointed in accordance with the terms of the Companies Act and therefore have no locus standi to exercise the statutory powers of a properly appointed liquidator and obtain an order against him. For these reasons I think the preliminary point has been successful and that the present application must be dismissed with costs. Mr. Das - Asks for costs against them personally. 2. Mr. B.C. Mitter.-Addresses Court. For these reasons I think the preliminary point has been successful and that the present application must be dismissed with costs. Mr. Das - Asks for costs against them personally. 2. Mr. B.C. Mitter.-Addresses Court. THE COURT.-The order must be made against the liquidators personally, and they are to have liberty to recoup themselves out of the assets of the Company and to pay their own costs from the same source.