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 writing; (b) remove the Official Liquidator on sufficient cause being shown; (c) proceed against the Official Liquidator for professional misconduct.” 3. The grievance raised by the appellant is that, the procedure prescribed under section 450 of the Act, 1956 has not been adhered to. The grievance raised by the appellant is that, the procedure prescribed under section 450 of the Act, 1956 has not been adhered to. It is urged that sub-section (2) of section 450 mandates that before appointing a provisional liquidator, the Tribunal shall give notice to the company and give a reasonable opportunity to it to make its representations, if any, unless, for special reasons to be recorded in writing, the Tribunal thinks fit to dispense with such notice. It is urged that the appellant is not afforded any opportunity of hearing, nor the reasons are recorded dispensing the service of notice which makes the order vulnerable and de hors the mandate of sub-section (2) of section 450 of 1956 Act. It is urged that the drastic action of appointment of liquidator ought not to have taken recourse as there is no complaint of any mismanagement, nor it is insolvent. 4. Reliance is placed on the decision in Virendrasingh Motilalji Bhandari and others vs. Nandlal Bhandari and sons Pvt. Ltd., Indore, 1978 M.P.L.J. 772; wherein, it is held that the appointment of a provisional liquidator is a drastic measure and should not be resorted to except in special circumstances, i.e. in cases of urgency. “23. Section 450 of the Companies Act, 1956 reads – “450. Appointment and powers of provisional liquidator. – (1) At any time after the presentation of a winding up petition and before the making of a winding up order, the Court may appoint the Official Liquidator to be liquidator provisionally....” Appointment of a provisional liquidator is a drastic measure and should not be restored to except in special circumstances, i.e. in cases of urgency. Though the section does not lay down any criteria, the principles governing the subject are well settled. In re London, Hamburg, and Continental Exchange Bank, LR (1866) 2 Eq. 231. Lord Romilly in as much quoted passage, stated, – “It is perhaps convenient that I should state what my practice is with reference to the appointment of provisional liquidators. Where there is no opposition to the winding up, I appoint a provisional liquidator as a matter of course, on the presentation of the petition. But where there is an opposition to it, I never do, because I might paralyse all the affairs of the company, and afterwards refuse to make the winding up order at all. Where there is no opposition to the winding up, I appoint a provisional liquidator as a matter of course, on the presentation of the petition. But where there is an opposition to it, I never do, because I might paralyse all the affairs of the company, and afterwards refuse to make the winding up order at all. But when the directors themselves apply, or do not oppose the winding up, then I appoint the provisional liquidator.” The dictum of Lord Romilly has stood the test of time and is taken to be the law on the subject; (Pennington’s Company Law, 3rd Edn. pp. 682-3; Buckley on the Companies Acts, 13th Edn.p.505; Datta on the Company Law, p.598; People’s Bank of India Ltd. vs. Narain Das, AIR 1916 Lahore 117, The Punjab Pictures Ltd. vs. Jhabar Mal, AIR 1949 East Punjab 139. In the matter of Northern Airways Ltd, AIR 1949 Lahore 9. In the matter of the Gaya Sugar Mills Ltd., AIR 1950 Patna 237. 24. Both, on authority and principle, a provisional liquidator is not, in general, appointed before the hearing of the petition for winding up unless the Company is shown to be insolvent or unless the petition is presented by the Company itself or shown to be unopposed. In re Gaya Sagar Mills Ltd. (supra), Shearer J. observed : “It may be that that would justify the making of a winding up order even if a majority of the share-holders are opposed to it. But a finding of fraud cannot be come to on the basis of affidavits. Moreover, what I am now concerned with is not the making of a winding up order but the application for the appointment of a provisional liquidator. Such an application is not ordinarily allowed except on the petition of a creditor who has been unable to obtain payment of his money, or unless the company asks for or agrees to the appointment. The dangers involved in appointing a provisional liquidator and then finding that there is no justification for making a winding up order are obvious. Such an application is not ordinarily allowed except on the petition of a creditor who has been unable to obtain payment of his money, or unless the company asks for or agrees to the appointment. The dangers involved in appointing a provisional liquidator and then finding that there is no justification for making a winding up order are obvious. The consequences to the company of the making of a wrong order in such a matter are far more serious than the granting of an injunction which has ultimately to be dissolved.” The principle that emerges is this : Before the Court takes such a drastic step it must be satisfied that such an order is absolutely necessary. The appointment of a provisional liquidator for a company which is carrying on business and functioning, as in the present case, would in effect put a stop to the business, though ultimately the Court may refuse to wind up.” In the case at hand as evident from the impugned order that no application seems to have been filed by the petitioner for appointment of Liquidator. It is merely on information that the Liquidator has not been appointed, learned Company Judge has directed for appointment of Liquidator. Sub-section (2) of section 450 of Act, 1956 no doubt does empower the Company Judge to appoint a provisional liquidator even without issuing notice to the Company Concerned, however, for that incumbent it is for the Company Judge to have recorded reasons which are conspicuously absent in the case at hand. 5. Further contention on behalf of respondent that the procedure prescribed under section 450 of 1956 Act and the Rules applies at initial stage of proceedings is taken note of and rejected at the outset. Fair reading of section 450 of 1956 Act does not contemplate that pendency of the petition under sections 433 and 434 of 1956 Act, the procedure is to be given a go bye. Even the decision in Piramal Financial Service Ltd. vs. Reserve Bank of India, (2001) 104 Company Cases 299 (Guj.) is of no assistance, as it is borne out from the said judgment that the Company Judge recorded reasons for not issuing notices to the Company concern. Whereas such is not the case at hand. 6. Even the decision in Piramal Financial Service Ltd. vs. Reserve Bank of India, (2001) 104 Company Cases 299 (Guj.) is of no assistance, as it is borne out from the said judgment that the Company Judge recorded reasons for not issuing notices to the Company concern. Whereas such is not the case at hand. 6. In view whereof, when the impugned order dated 8-7-2019 is tested on the anvil of the stipulations contained under section 450 of the Act, 1956 the same is not sustainable in the eyes of law, accordingly set aside. 7. The appeal is allowed in above terms. No costs.