Judgment :- 1. Whether an Official Liquidator appointed as liquidator of a particular Company in winding up proceedings can be proceeded under S.543(1) of the Companies Act is the main question to be decided in this case. The first respondent in this case who was the Official Liquidator, High Court of Kerala was the liquidator of M/s. Mittal Steels Perolling Industries (P) Ltd. which was a company in liquidation as per the court order. M.C.A. Nos. 94/95 and 29/96 were filed by the appellant herein against the respondents under S.543(1) of the Companies Act. The learned Company Judge found that the applications against the first respondent who is the Official Liquidator will not lie and the applications are not maintainable. Therefore preliminary objections were upheld and M.C.As were dismissed as not maintainable. Before considering the reasoning of the Learned Company Judge, we will extract S.543(1) of the Companies Act below: "543. Power of Court to assess damages against delinquent directors, etc. (1) If in the course of winding up a company, it appears that any person who has taken part in the promotion or formation of the company, or any past or present director, manager, liquidator or officer of the company (a) has misapplied, or retained, or become liable or accountable for, any money or property of the company; or (b) has been guilty of any misfeasance or breach of trust in relation to the company; the Court may, on the application of the Official Liquidator, or the liquidator, or of any creditor or contributory, made within the time specified in that behalf in sub-s. (2), examine into the conduct of the person, director, manager, liquidator or officer aforesaid, and compel him to repay or restore the money or property or any part thereof, respectively, with interest at such rate as the Court thinks just or to contribute such sum to the assets of the Company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust, as the Court thinks just." 2. The above section provides that in the course of winding up if any person who has taken part in the promotion or formation of the company or any past or present director, manager, liquidator or officer of the company has misapplied any money or property of the company or has been guilty of any misfeasance or breach of trust, then such persons can be proceeded upon for misapplication, retainer, misfeasance or breach of trust. The next part of the section provides who are competent to file application under the above section. Application can be filed by the Official Liquidator or Liquidator or any creditor or contributory, made within the time specified in sub-s. (2). Therefore, it is clear that an Official Liquidator or Liquidator or any creditor or contributory can file an application under the section. The last part of the section indicates that on such application court can take action against such director, manager, liquidator or officer aforesaid and take action against them in respect of misapplication, retainer, misfeasance or breach of trust. The learned judge found that in the first part and the last part only the word "liquidator" is mentioned, whereas for filing an application, in the second part'Official Liquidator' was specifically mentioned. Therefore, Official Liquidator can file an application under the section. But complaint cannot be filed against the Official Liquidator, but only against a liquidator and it is also held that specifically the name of Official Liquidator is not mentioned in the first part or the last part. But that is only used for enabling an Official Liquidator to file an application and therefore no action can be taken against the Official Liquidator. Only a liquidator other than the Official Liquidator can be proceeded under the section. Learned Judge also noticed that under S.457 of the Companies Act complaints can be filed against the Official Liquidator and therefore if there is any complaint against the Official Liquidator proper remedy is to file an application under S.457(3) of the Companies Act and not under S.543. It was also noticed by the learned judge that Official Liquidator is acting under the supervision and control of the Court and he is appointed by the Central Government for the High Court and he is standing on a special footing and 'Official Liquidator' should be differentially treated than the 'liquidator'. It was also noticed by the learned judge that Official Liquidator is acting under the supervision and control of the Court and he is appointed by the Central Government for the High Court and he is standing on a special footing and 'Official Liquidator' should be differentially treated than the 'liquidator'. With regard to the contention that even if 'Official Liquidator' is not specifically included in the 1st and last parts of definition, he will come in the category of officer, the learned judge found that the liquidator, officer etc. are specifically mentioned in the section and therefore under the term'officer'. Official Liquidator will not come especially considering the inclusive definition of officer under S.2(30) of the Companies Act. 3. We may now consider how the Official Liquidator is appointed. S.448 of the Companies Act provides how the Official Liquidator is appointed. S.448(1)(a) reads as follows: "448. Appointment of Official Liquidator.- (1) For the purposes of this Act, so far as it relates to the winding up of companies by the Court, (a) there shall be attached to each High Court, an Official Liquidator appointed by the Central Government, who shall be whole-time officer, unless the Central Government considers that there will not be sufficient work for a whole-time officer in which case a part-time officer may be appointed;" S. 449 provides that on a winding up order being made in respect of a company, the Official Liquidator shall, by virtue of his office, become the liquidator of the company. Therefore, whenever there is a Court winding up, Official Liquidator is appointed as liquidator of that company. In other words the term liquidator is a generic term and Official Liquidator is also a liquidator with regard to the companies that have been ordered by the court to be wound up. S.450 also provides that on presentation of winding up petition the Court can appoint the Official Liquidator to be a liquidator of that Company provisionally. Powers of the liquidator is mentioned in S.457 of the Act. S.457 also deals with the powers of the Official Liquidator. But the section only uses the term'liquidator'. S.450 also provides that on presentation of winding up petition the Court can appoint the Official Liquidator to be a liquidator of that Company provisionally. Powers of the liquidator is mentioned in S.457 of the Act. S.457 also deals with the powers of the Official Liquidator. But the section only uses the term'liquidator'. S.457(3) provides as follows: "457(3): The exercise by the liquidator in a winding up by the Court of the powers conferred by this section shall be subject to the control of the Court; and any creditor or contributory may apply to the Court with respect to the exercise or proposed exercise of any of the powers conferred by this section." 4. S.512 provides powers and duties of a liquidator (other than Official Liquidator) in voluntary winding up. There also similar power is given to the Court as follows: "512(2). The exercise by the liquidator of the powers given by clause (a) of sub-s. (1) shall be subject to the control of the Court; and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of the powers conferred by this section". But as far as Official Liquidator is concerned, he is bound to act with the approval of the court in all matters and exercise of all powers of 'Official Liquidator' is subject to the control of court in view of S.457(3) and 512(2). S.460 and 462, also show that every act of the liquidator is under the control of court. Not only with regard to the winding up of a company by the court wherein Official Liquidator is appointed as liquidator of that particular company, with regard to the voluntary winding up also Official Liquidator has given wide powers under S.497 and 509. Therefore, Official Liquidator will act as liquidator of a company wound up by the Court and at the same time Official Liquidator by virtue of his office has got general powers under the Companies Act. 5. Under the third part of S.543(1), the term 'liquidator' contemplates a'liquidator' of a particular company which is in the process of winding up. It can be an Official Liquidator appointed as liquidator in a court winding up or a liquidator in voluntary winding up. 5. Under the third part of S.543(1), the term 'liquidator' contemplates a'liquidator' of a particular company which is in the process of winding up. It can be an Official Liquidator appointed as liquidator in a court winding up or a liquidator in voluntary winding up. But the second part uses the terms 'Official Liquidator' and 'liquidator' separately because an Official Liquidator apart from his capacity as 'Liquidator' of a company under winding up by court, can file a petition under the above section in his official capacity. It enables the Official Liquidator to file a complaint against the liquidator of a company in voluntary winding up or any other officer as mentioned in the section. In other words, even if that company is under voluntary winding up and he is not appointed as a liquidator to that company, Official Liquidator can file a petition. That is why in the second part of the definition Official Liquidator is specifically mentioned. In the first part and the last part, the term 'liquidator' is mentioned as a liquidator of a particular company in winding up and as regards a company ordered to be wound up as per the orders of the court, 'the Official Liquidator' is necessarily 'the liquidator'. 5. We also refer to the decision of the Madras High Court in Parandhamiah v. Narasimha Rao (AIR (37) 1950 Madras 68). The Court was considering S.235 of the Companies Act before its amendment. There a contention was taken up that the above section is applicable only to a company in winding up on orders of the Court. Negativing the contention the court held as follows: "The word "liquidator" in S.235 is used in a comprehensive sense so as to take is not only the Official Liquidator but also other liquidators such as a liquidator appointed in voluntary winding up. There is no reason, nor is there any indication of a contrary intention either in the language of the section (S. 235) or in the scheme of the Act to exclude its applicability to the case of a company which was wound up voluntarily. Clause (2) of S.155 expressly makes the provisions relating to winding up of a company in any of the three modes indicated in cl. (1) unless there is a contrary intention". Clause (2) of S.155 expressly makes the provisions relating to winding up of a company in any of the three modes indicated in cl. (1) unless there is a contrary intention". Therefore, the word "liquidator" used in the first part, the second part and the third part has the same meaning as a liquidator of the company. He will be the Official Liquidator himself in a court winding up or he may be a liquidator in a voluntary winding up. But an Official Liquidator under his official capacity apart from the liquidator of the particular company in winding up can file a petition under the section in view of the second part of the section. 6. Another argument raised by the counsel for the appellant is that even if Official Liquidator will not come within the category of liquidator as per the third part of the Act, he will necessarily be an officer of the Company, liable to be proceeded under law. Then also action can be taken. The officer of the company is defined under S.2(30) of the Act which is as follows: "2(30). "Officer" includes any director, managing agent, secretaries and treasurers, manager or secretary, (or any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act) and also includes (a) Where the managing agent, (or the secretaries and treasurers) is or are a firm, any partner in the firm; (b) where the managing agent or the secretaries and treasurers is or are a body corporate, any director or manager of the body corporate; but, save in S.477, 478, 539, 543, 545, 621, 625 and 633 does not include an auditor;" The above section is only an inclusive definition. Certain officers are specifically mentioned as officers of the company. In P.C. Pothen, Liquidator of the Common Wealth Bank Ltd. (in liquidation) (1966 (1) ILR Kerala 1) Justice Raman Nayar has very clearly considered the matter in Para.3 and 4 of the above decision. Since the matter cannot be explained in a more clear language, we extract below the Para.3 and 4: "3. The Registrar has taken the objection that a liquidator is not an officer of the company that is being wound up, and that therefore S.633 can have no application to him. Since the matter cannot be explained in a more clear language, we extract below the Para.3 and 4: "3. The Registrar has taken the objection that a liquidator is not an officer of the company that is being wound up, and that therefore S.633 can have no application to him. My attention is drawn to the definition of "officer" in S.2(30) of the Act, and it is pointed out that a liquidator finds no mention there. But then the definition is an inclusive definition, so that, if according to the ordinary meaning of the term a liquidator can be regarded as an officer of the company, the definition cannot have the effect of excluding him. My attention is next drawn to S.192(7), 485(2) and 501(2) of the Act which expressly provide that for certain purposes a liquidator shall be deemed to be an officer of the company. But the argument that this implies that he is not an officer for any other purpose is a kind of argument that has always been viewed with caution. If we turn to S.493(3), we find it saying, "every officer of the company (including every liquidator or continuing liquidator) who is in default" which certainly implies that a liquidator is an officer of the company in the ordinary sense of the term. And in S.621 (3) we find the express disclaimer, "A liquidator of a company shall not be deemed to be an officer of the company within the meaning of sub-s. (1)". If the contention based on the deeming provision in S.192(7), 485(2) and 501(2) is to be accepted, then by parity of reasoning, the disclaimer in S.621(3) should mean that for all purpose other than that of S.621(1), a liquidator is an officer of the company. 4. Construing the term, "officer of a company" in its natural sense, I should think that the liquidator of a company is an officer of the company even if it be that in the case of an Official Liquidator or a Court Liquidator he is, at the same time, an officer of the Court. A company does not cease to exist when it goes into liquidation. That happens only when it is dissolved. A company does not cease to exist when it goes into liquidation. That happens only when it is dissolved. Meanwhile, the person who acts for and on behalf of the company is the liquidator - see S.457 in the case of a winding up by court and S.512(a) and (b) read with S.457 in the case of voluntary winding up. That a liquidator is an officer can scarcely be doubted, and that being so, I do not think it would be any violence to language to say that he is an officer of the company". As held in the above decision, officer of the company includes Official Liquidator or Court Liquidator in spite of the fact that he is an officer of the court. Therefore, even though the term 'Official Liquidator' or 'liquidator' is not specifically mentioned in S.2(30) of the Act, they are officers of a company in winding up. In third part of S.543(1) the term'Manager' is specifically mentioned apart from 'liquidator' or 'officer'. If the reasoning of the Company Judge is accepted, there was no necessity to specifically mention Manager in S.543(1) as under S.2(30) in the inclusive definition, Manager is also specifically included as an officer. Therefore, we are of the view that the application cannot be dismissed as not maintainable merely because 'Official Liquidator' is the respondent and the finding of the learned judge that application against 'Official Liquidator' under S.543 is not maintainable at all cannot be accepted. 'Official Liquidator' is a 'liquidator' of a company ordered to be wound up. 7. Merely because a petition is maintainable under S.543 against the Official Liquidator, Company Court need not always proceed with the case unless the court is satisfied that there is prima facie case. There may be cases where the particular action challenged is specifically approved by the court and court has earlier considered the allegations now raised and found that nothing wrong therein, there is no necessity to proceed with the case. Therefore the Company Court can proceed with the matter only if there is a prima facie case and there is substance in the allegations. Official Liquidator is entitled to protection under S.635A. If the act is done in good faith, Official Liquidator cannot be proceeded as he is protected under this section. Therefore the Company Court can proceed with the matter only if there is a prima facie case and there is substance in the allegations. Official Liquidator is entitled to protection under S.635A. If the act is done in good faith, Official Liquidator cannot be proceeded as he is protected under this section. Hence, we set aside the matter and remand the same to the Company Court for first finding out whether there is a prima facie case to be proceeded with and then, if there is any prima facie case, proceed with the case in accordance with law. Both the appeals are disposed of accordingly. When the judgment was pronounced in open court, the learned counsel appearing for the appellant prayed for leave to file appeal in Supreme Court. We are of the opinion that it is not a fit case to grant leave. Liquidator will be free to take all his defences before the Company Court.