JUDGMENT 1. - Ex parte judge's summons were issued to the non-petitioners for their public examination under section 478(1) of the Companies Act, 1956 (for short, "the Act"). The issue of ex parte summons has been contested on behalf of the accused non-petitioners, Ganesh Narain R. Podar and others, on the ground that the ex parte summons should not have been issued and, in the facts and circumstances of this case, the public examination of the non-petitioners will be oppressive inasmuch as they will be called upon to furnish information which may be used against them later on in the criminal prosecution lodged against them and pending in this court under section 454 of the Act. 2. In Company Petition No. 10 of 1980 under order dated December 2, 1983, after contest, Jaipur Spinning and Weaving Mills Ltd. (for short, "the company in liquidation") was ordered to he wound up by this court and the petitioner was appointed as the official liquidator with effect from the said date. It may be stated that the said company petition for winding up was moved in this court by Swadesh Poli Textiles Ltd., Ghaziabad (U. P.), on December 15, 1980, on which the winding up order of the company in liquidation was served on the petitioner, the official liquidator, on December 8, 1983, and as per the record, and it is no longer disputed that, non-petitioners Nos. 1 to 5 were the directors of the company in liquidation and non-petitioner No. 6 was the secretary. As per the provisions contained in section 454 of the Act, non-petitioners Nos. 1 to 6 were liable to file statement of affairs of the company in liquidation. The official liquidator sent registered notices to all the non-petitioners as required under rule 124 of the Companies (Court) Rules, 1959 (for short, "the Rules"), and each of the non-petitioners was directed to file a statement of affairs of the company and they were also directed to appear before the official liquidator. Despite service of the aforesaid notices, non-petitioners Nos. 1 to 3, 5 and 6 did not file the statement of affairs of the company. Despite service of the aforesaid notices, non-petitioners Nos. 1 to 3, 5 and 6 did not file the statement of affairs of the company. So far as non-petitioner No. 4 is concerned, he replied to the notice of the official liquidator showing inability to present himself before the official liquidator on the ground of illness as well as under the pretext that he has already resigned from the directorship of the company in liquidation. Similarly, non-petitioner No. 3 also took an excuse that he too has resigned from the directorship of the company in liquidation but the record did not show it. 3. Under section 477 of the Act, power is vested in this court, since the liquidator has been appointed and a winding-up order has been made, to summon before it any officer of the company or person known or suspected to have in his possession any property or books or papers of the company or known or suspected to be indebted to the company, or any person whom the court deems capable of giving information concerning the promotion, formation, trade dealings, property, books or papers, or affairs of the company. A bare reading of sub-section (1) of section 477 will show that so far as any officer of the company is concerned and non-petitioners Nos. 1 to 6 being the officers of the company within the meaning of section 2(3) of the Act including any directors, secretary, etc., can be summoned by the court for examination. He should be a person known or suspected to have in his possession any property or papers or books of the company or should be known or suspected to be indebted to the company or should be a person whom the court deems capable of giving information concerning the promotion, formation, trade, dealings, property, books or papers or affairs of the company. A similar question arose before the Bombay High Court in the case of Pravin Sankalchand Shah v. D.B. Dalal, Official Liquidator [1967] 37 Comp Cas 317 . A similar question arose before the Bombay High Court in the case of Pravin Sankalchand Shah v. D.B. Dalal, Official Liquidator [1967] 37 Comp Cas 317 . On a construction of section 477, the court said that the provisions of sub-section (1), if carefully scrutinised, are that the court thereunder is authorised to summon before it four classes of persons for their examination, viz., (a) any officer of the company, (b) any person known or suspected to have in his possession any property or books or papers of the company, or (c) any person known or suspected to be indebted to the company, or (d) any person whom the court deems capable of giving information concerning promotion, formation, trade, dealings, property, books or papers or affairs of the company. It will be pertinent to note that, whereas in regard to the last three classes of persons, there are qualifying words, in regard to the first class of persons, viz., any officer of the company, there are no qualifying words used. In other words, if a person to be summoned for examination under section 477 belongs to the last three classes of persons, such person must be known or be suspected to have in his possession any property or books or papers of the company or known or suspected to be indebted to the company or must be one whom the court deems capable of giving information pertaining to the subjects mentioned therein, but an officer of the company could be summoned irrespective of whether he has in his possession any property, books or papers of the company or not, whether he is indebted to the company or not or whether or not the court deems him capable of giving information. Therefore, on a construction of section 477 of the Act, it can be straightaway said that, in the case of any officer of the company, before he cart be called upon for examination under section 477 of the Act, it is not necessary that he should be known or suspected to have in his possession any property, books or papers or should be indebted to the company or must be one whom the court deems capable of giving information pertaining to the subjects mentioned therein. An officer of the company could be summoned irrespective of whether or not he is in possession of any property, books or papers of the company or not, whether he is indebted to the company or not or whether or not the court deems him capable of giving information. So far as the accused petitioners are concerned, they are the officers of the company in liquidation and there can be hardly any doubt that their case fell under sub-section (1)(a) of section 477 of the Act as extracted in the case of Pravin Sankalchand Shah [ 1967] 37 Comp Cas 317 (Bom). 4. There can be no dispute that so far as the public examination of the officers, etc., of the company in liquidation under section 477 of the Act is concerned, it is primarily to seek information so as to facilitate the winding up proceedings. In the same case of Pravin Sankalchand [1967] 37 Comp Cas 317 (Bom), the learned judge has said that. the examination is mandatory and is resorted to for the purpose of collecting materials to facilitate the winding-up proceedings. In Ballygunge Real Property and Building Society Ltd., In re [1962] 32 Comp Cas 458 (Cal) , the court said that the examination under section 477 of the Act is not a proceeding of liquidation as contemplated by rule 360(i). It is a proceeding for the purpose of assisting the winding up. In the case of Haribans Prasad Ajodhia Prasad v. National Sugar Mills Ltd. [1931] 1 Comp Cas 151 (Lahore) , the court was considering the proceedings under section 195 of the Companies Act then in force, which provision is analogous to section 477 of the Act and said that this court should seek information on matters which may be just or beneficial for the winding up of the company. It can, therefore, be said that the examination under section 477(1) of the Act is for assisting the court in the winding up proceedings. 5. The contention of Mr. Bhandari, learned counsel for non-petitioner No. 1, is that under the garb of collecting some information, an application under section 477 of the Act cannot be presented and the court should not issue summons for examination of the officers of the company in liquidation. 5. The contention of Mr. Bhandari, learned counsel for non-petitioner No. 1, is that under the garb of collecting some information, an application under section 477 of the Act cannot be presented and the court should not issue summons for examination of the officers of the company in liquidation. Learned counsel referred to rules 243 to 258 of the Rules, those rules relating to the examination under sections 477 and 478 of the Act. In sub-rule (1) of rule 243, an examination under section 477 of the Act may be made ex parte, provided that, where the application is made by any person other than the official liquidator, notice of the application shall be given to the official liquidator and summons shall be in Form No. 109. In rule 244, upon the hearing of the summons, the judge may, if satisfied that there are grounds for making the order, make an order directing the issue of a summons against the person named in the order for his examination and/ or for the production of documents. Unless the judge otherwise directs, the examination of such person shall be held in chambers. The order shall be in Form No. 110. Rule 245 permits examination on commission or by interrogatories and the summons issued to any person in pursuance of the order in Form No. 111. Learned counsel contends that it is in the discretion of the court to allow examination under section 477 of the Act and further that even if an ex parte order is made for issue of summons for the examination under section 477 of the officers and others, the other side always can object to issue of summons and can request that the same may be withdrawn. There can be no dispute that from a bare reading of rule 243 of the Rules the official liquidator can make an application for examination of the person under section 477 of the Act and an order for issue of summons ex parte can be made. But, in my opinion, even if an ex parte summons has been issued, the other side can always challenge it and the court will decide as to whether summon issued for the examination should be withdrawn or whether there should be any examination under section 477 of the officers of the company and other persons mentioned therein. 6. But, in my opinion, even if an ex parte summons has been issued, the other side can always challenge it and the court will decide as to whether summon issued for the examination should be withdrawn or whether there should be any examination under section 477 of the officers of the company and other persons mentioned therein. 6. There is no dispute that the proceedings under sub-section (5) of section 477 of the Act are pending in this court against the non-petitioners. It can also be said in these proceedings that the evidence of the prosecution has been concluded and it was so concluded after the evidence of the official liquidator was recorded as the solitary witness, the statement of some of the accused petitioners under section 313, Criminal Procedure Code, was also recorded and the case is now posted for recording the statement of the accused persons under section 313, Criminal Procedure Code, in that case. The contention of learned counsel for the non-petitioner, Mr. Bhandari, is that the examination of the officers of the company in liquidation is sought in order to furnish information. It may directly or indirectly help the official liquidator in the case file under sub-section (5) of section 454, Criminal Procedure Code. He, therefore, contends that the main purpose of the present application is that to help the official liquidator in the proceedings of the aforesaid criminal case and the examination will be oppressive and vexatious inasmuch as the non-petitioners are called upon to furnish material which will be used against them later on in a complaint under sub-section (5) of section 454 of the Act. In other words, the contention of learned counsel is that the purpose of examination of the accused-non-petitioner under sub-section (1) of section 477 of the Act is to afford the official liquidator an opportunity to secure the information against the non-petitioners. It is also contended that the examination of the non-petitioners, if allowed to take place, will relate to items which are the subject-matter of enquiry in the proceedings under sub-section (5) of section 454 of the Act. In support of the aforesaid contention, Mr. Bhandari, learned counsel for the non-petitioners, has placed reliance on the case of Official Liquidator, Nagpur Glass Works Ltd. v. D.P. Ogale [1971] 41 Comp Cas 524 (Bom) . In support of the aforesaid contention, Mr. Bhandari, learned counsel for the non-petitioners, has placed reliance on the case of Official Liquidator, Nagpur Glass Works Ltd. v. D.P. Ogale [1971] 41 Comp Cas 524 (Bom) . In that case, two applications for revocation of the ex parte order for the examination of the directors of Nagpur Glass Works Ltd., a company, liquidation, came up for consideration before the court. In that case, the revocation of the summons for the private examination of the directors of the company in liquidation was sought on the ground that the same had been obtained mala fide and with an ulterior motive, i.e., with a view to elicit further information from the directors so as to prosecute a misfeasance summons previously taken out under the provisions of section 543 of the Act. A contention was raised that the order has been obtained for the sole purpose of eliciting information for the better prosecution of a misfeasance summons, and not for the effective prosecution of the winding-up but to facilitate the prosecution of the misfeasance summons. Therefore, the order was sought for an ulterior or collateral purpose and is otherwise vexatious and oppressive and, therefore, it ought to be revoked. A reading of the aforesaid case will show that if the application for the private examination is made solely for the purpose of facilitating the misfeasance summons under section 543 of the Act, then the same cannot be allowed, but if it is made also for the purpose of active prosecution in the winding up, it is permissible. On going through the statement made by the official liquidator in the application, it was held there that the ex parte order for examination was oppressive or vexatious and, was sought to facilitate an application filed by the official liquidator against the applicants. It was also held by the court that the order for private examination under sub-section (1) of section 477 of the Act is obtained solely for the purpose of prosecuting the misfeasance proceedings. It will be oppressive and vexatious and not for the purpose specified under section 477 of the Act, i.e., for the purpose of winding up. It was also held by the court that the order for private examination under sub-section (1) of section 477 of the Act is obtained solely for the purpose of prosecuting the misfeasance proceedings. It will be oppressive and vexatious and not for the purpose specified under section 477 of the Act, i.e., for the purpose of winding up. In the case of Devinder Kishore Mehra v. Official Liquidator [1980] 50 Comp Cas 699 (Delhi) , the court took the view that the statement of affairs postulated by section 454 of the Act is the very basis of the winding-up proceedings and it is not a proceeding which can be called a fact-finding enquiry or a fishing enquiry as it is to obtain as full an information as possible, not piecemeal information, which is to be filed by a person who is in a position to do so and not by persons who are or were directors or officers in name or have never had opportunity to know the affairs of the company. The aforesaid case referred to by Mr. Bhandari is not relevant so far as private examination of the officers of the company and others under section 477 of the Act is concerned, and a reading of the aforesaid case will show that though it is the duty of the director and other persons who have resigned from the posts of the directors to file the statement of affairs if the books of the company are not available to a director who is required to file a statement of affairs of the company ordered to be wound up, it would be a reasonable excuse for him in not submitting the statement of affairs in a prosecution launched against him for failure to file the statement. 7. The case of Registrar of Restrictive Trade Agreements v. Incheck Tyres Ltd. [1976] 46 Comp Cas 146 (MRTPC) , is a case under the Monopolies and Restrictive Trade Practices Act, 1969. In the course of an application under section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act, 1969, the Registrar applied for leave to deliver interrogatories before filing his reply to the statement of case filed by the undertaking concerned, the respondent, and his application was granted ex parte. In the course of an application under section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act, 1969, the Registrar applied for leave to deliver interrogatories before filing his reply to the statement of case filed by the undertaking concerned, the respondent, and his application was granted ex parte. The Supreme Court said that the application should not have been granted as the proper stage for delivery of interrogatories was only after the completion of pleadings. That case, therefore, in my opinion, has no application in the present controversy. In the case of Palai Central Bank Ltd., In re [1962] 32 Comp Cas 1008 (Ker) , the court considered the difference between the provisions of the Act and the Banking Companies Act, 1949, and said that the essential difference between the provisions of section 478 of the Companies Act and section 45G of the Banking Companies Act is that while section 478 of the Companies Act requires a statement by the liquidator that, in his opinion, a fraud has been committed by the person whose public examination he seeks, section 45G of the Banking Companies Act does not require an allegation of fraud, but requires only an allegation that there has been an act or omission, whether amounting to fraud or not, by which loss has been caused. The court further said that, despite verbal differences between the two sections, there is no difference in the scope of the enquiry which the court has to make before ordering a public examination, whether under section 478 of the Companies Act or under section 45G of the Banking Companies Act. It may be stated that there is no application under section 478 of the Companies Act and, in that case, the provisions of section 478 were considered and, under that section, while dealing with the public examination of the directors, it is necessary that, before the same can be ordered, the court must be satisfied from the statement of the official liquidator that the official liquidator has come to the conclusion that an act or omission resulting in loss is disclosed by the facts. That case, therefore, has no application. 8. That case, therefore, has no application. 8. It has already been said earlier that the proceedings under section 454(5) are pending in this court and it is not disputed that those proceedings were instituted in this court on November 16, 1984, and the present petition for private examination of the officers under section 477 of the Act was filed in this court on January 16, 1985. The question is as to whether merely because the proceedings under section 454(5) were pending it can be said that the private examination of the directors, non-petitioners in this case, under section 477 of the Act is only to seek information to further those proceedings or the examination is necessary to assist the winding up proceedings. In other words, whether the examination is for the purpose of assisting the court in the winding up proceedings. If the examination is solely for the purpose of prosecuting the persons under section 454(5) of the Act, then the same shall be vexatious or oppressive or for collateral purposes. But merely because in some indirect way the private examination of the directors may help the liquidator in the proceedings under section 454(5) of the Act, it cannot be said that their private examination will be for some collateral purpose. It may be stated that even in the case of private examination of the directors under section 477(1) of the Act the director cannot be compelled to answer question which may be asked in relation to criminal prosecution. A similar question was examined by Tulzapurkar J., as he then was, in the case of Pravin Sankalchand Shah [1967] 37 Comp Cas 317 (Bom). In that case, the proceedings under section 543 of the Act were pending and a similar argument was advanced on behalf of the company in liquidation which has been advanced before this court by Mr. Bhandari, learned counsel for the non-petitioner and the learned judge said that it is a well-known proposition that in such private examination, it is open to the examinee to refuse to answer the questions put by the official liquidator in respect of the proceedings under section 543 of the Act, in respect of assessing damages against the delinquent directors. Bhandari, learned counsel for the non-petitioner and the learned judge said that it is a well-known proposition that in such private examination, it is open to the examinee to refuse to answer the questions put by the official liquidator in respect of the proceedings under section 543 of the Act, in respect of assessing damages against the delinquent directors. It is well-known that the purpose of the proceedings against the officers q the company and proceedings under section 477(1) for private examination of the officers, etc., are different and, being different, it cannot be said that mere pendency of those proceedings will lead to the inference that the private examination under section 477(1) of the Act is oppressive or vexatious or is in order to get incriminating evidence from the examinees. 9. It is to be seen from the statements made by the official liquidator as to whether the examination of the directors, non-petitioners in this case, under sub-section (1) of section 477 of the Act is for the purposes mentioned therein or is for some collateral purposes, i.e., to further the proceedings under sub-section (5) of section 454 of the Act. There is no dispute, from the averments made in the petition as well as from the reply and no controversy has been raised by learned counsel for the non-petitioners that despite notice, statement of affairs as required under section 454 of the Act has not been filed by any of the non-petitioners. As reasons for not filing the statement in each case, some of the non-petitioners have said that they have resigned from the directorship long back and Ganesh Narain R. Podar has said that they are not in possession of the account books, etc., and, therefore, they are unable to file the statement of affairs, etc. It cannot be disputed that, unless the statement of affairs of the company in liquidation is filed, it is not possible to facilitate the winding up proceedings and it is not possible to know the assets and liabilities of the company. It is not possible to know as to who are the creditors of the company, debtors of the company and, in such a case, it is not possible to file claims against the debtors within the prescribed period of limitation. It is not possible to know as to who are the creditors of the company, debtors of the company and, in such a case, it is not possible to file claims against the debtors within the prescribed period of limitation. Ganesh Narain had engaged a chartered accountant firm to file the statement of affairs of the company but even the chartered accountant firm of the company in liquidation could not file the statement of affairs of the company because the company's records were not available as they are in the factory premises which the official liquidator has taken possession. In the absence of handing over the company's records, it cannot be disputed and it is not possible for the official liquidator to take effective steps in the winding up proceedings and also to complete the proceeding as early as possible. As per the last balance-sheet which was available in the records of the Registrar of Companies, Jaipur, so far as the company in liquidation is concerned, for the year ended December 31, 1988, it transpired that the company has fixed assets the value of which was given as rupees two crores. It had loans and advances to the tune of Rs. 2,76,53,703. The details of loans and advances have been given in schedules G and H attached to the balance-sheet. Schedule G which relates to the fixed deposit states that apart from land, plant, machinery and building, the company was also having vehicles the value of which was given as Rs. 1,70,650. The official liquidator was furnished only with the information regarding three vehicles which, according to non-petitioner No. 1, Ganesh Narain, have already been disposed of. From the value of the vehicles as given in Schedule G, it appears that the vehicles were more than five in number and should have been with the company in liquidation. It also appears from Schedule G which pertains to assets, loans and advances that the company was having sundry debtors (unsecured) and the outstanding amount shown as on December 31, 1980, is to the tune of Rs. 1,14,26,699. At item No. 4 of the schedule, the cash and bank balance has been shown as Its Rs. 4,57,904. In the balance-sheet, loans and advances have been shown to the tune of Rs. 1,14,26,699. At item No. 4 of the schedule, the cash and bank balance has been shown as Its Rs. 4,57,904. In the balance-sheet, loans and advances have been shown to the tune of Rs. 2,76,53,703 but for want of information and details and the names of the persons to whom the loans were advanced as also the names of the banks where the company was having its accounts, it is very difficult for the official liquidator to take any action whatsoever for the purpose of realising the amount due from the debtors and also to get the amounts from the banks. The balance sheet further reveals that under the heading sundry debtors (unsecured), it was stated that debts to the tune of Rs. 61,41,049 are considered to be doubtful. Similarly, it further appears that the balance-sheet, in its schedules, has shown various amounts details of which have not been shown to the official liquidator and thus it is not possible to recover those amounts. Even some litigation is also pending between the company in liquidation and official liquidator of which details are also not available and as a result of which it may be that the suits may go un-contested and liabilities may he fastened on the company in liquidation. In the absence of the details with the official liquidator, it is not possible to take any action for realising the aforesaid assets. There is no dispute that the company in liquidation had its branch offices at Ludhiana, Bhatinda, Panipat, New Delhi, Ahmedabad, Surat and Bombay and the official liquidator has already taken possession of the branch offices at Ludhiana, Bhatinda, Panipat and New Delhi. The official liquidator has tried to take possession of the branch office at Bombay but a very strange story has been revealed. The office of the company was situated at Podar Chambers, Fort, Bombay, where the official liquidator was informed by one of the directors, Shri Ganesh Narain Podar, that the company was not having any branch office at Podar Chambers, but it was only an adjustment and some of the employees of the company were allowed to sit there by the Podar Chambers without charging any rent. Furniture too was provided to the employees of the company at Podar Chambers. Furniture too was provided to the employees of the company at Podar Chambers. Though non-petitioner No. 1 said so he did not furnish the details of the records and the list of the persons who were working there as employees of the company in liquidation. Thus, the records of the Bombay branch have not been handed over to the official liquidator nor were the details of the record furnished. Other details are also contained in the petition filed by the official liquidator. 10. From the above facts, in my opinion, it cannot be said that private examination of the non-petitioners under sub-section (1) of section 477 of the Act is sought for any purpose, other than the purpose mentioned therein. It cannot be said that the private examination is being sought solely for the purpose of prosecuting, the application under section 454(5) of the Act. 11. It may be stated that. while making the ex parte order on March 13, 1985, for issue of judges summons to the non-petitioners for private examination, the prescribed rules have not been followed but, as a result of the above order, it has been held that private examination is necessary to facilitate the winding up proceedings. The non-petitioners have already put in appearance. They will appear for their private examination under sub-section (1) of section 477 of the Act. In a case of the present nature, private examination by interrogators will not serve the purpose. But. I am of the opinion that so far as non-petitioners Nos. 3 and 4, Chunnilal and Banshidhar Somani, are concerned, looking to their replies which they had filed to the official liquidator, I do not consider it necessary to examine them under sub-section (1) of section 477 of the Act. 12. Consequently, the applications filed on behalf of non-petitioners Nos. 1, 2 and 6 for revocation of the judge's summons for private examination of there is dismissed. They shall make themselves available for private examination on April 20, 1990. 13. But non-petitioners Nos. 3 and 4 need not present themselves for the purpose of private examination. All the four non-petitioners are represented by their counsel. Necessary expenses will be given to them by learned counsel for the official liquidator and they will appear for their private examination on April 20, 1990. *******