At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE S. RANGARAJAN
For the Appearing Parties: N.S.Rao, Advocate.
S. RANGARAJAN, J.
( 1 ) THE interesting question that falls for decision in this application is whether a Liquidator appointed in the course of voluntary winding up whose remuneration was fixed (at Rs. 3,000. 00) could apply for revising the said remuneration on the ground that the voluntary winding up, without supervision of the Court, has since come under the supervision of the court.
( 2 ) ). The Registrar of Companies has pleaded in bar of the application section 490 of the Companies Act, which reads as follows :"490". Power of Company to appoint and fix remuneration of Liquidators (i) The company in general meeting shall(a) appoint one or more liquidator for the purpose of winding up the affair* and distributing the assets of the company and (b) fix the remuneration if any, to be paid to the liquidator or liquidators. (2) Any remuneration so fixed shall not be increased in any circumstances whatever, whether with or without the sanction of the court. (3) Before the remuneration of the liquidator or liquidators is fixed as aforesaid, the liquidator or any of the liquidators, as the case may be, shall not take charge of his office. "
( 3 ) IT is necessary to note that this section does not prohibit the remuneration being reduced ; it shall not be increased under any circumstances whatever. Subsections (2) and (3) of the said act are new, subsection (2) being based on the recommendations of the Company Law Committee, which stated that the remuneration of a Voluntary liquidator, when once fixed, should not be increased at any subsequent stage. " We have got only two important recommendations to make. First, that the remuneration of a liquidator in voluntary winding up should be remuneration fixed at the time of his appointment and such remuneration should not be increased under any circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . As the shareshoulders take very little interest in these cases, the liquidators often succeed in securing sanction to increase in their remuneration with the help and support of the management of the company, while the proceedings drag on in a leisurely manner. We consider this practice wholly improper. Apart from the facts that it reduces the assets of the company concerned, the further point that this practice enables the liquidators to receive benefits from the erstwhile management of a company, must necessarily derogate from their independent position. "
( 4 ) SHRI N. S. K. Rao, learned counsel for the applicant, invites my attention to the decision in Re: Mortimers "london" Ltd. , where Bennett.. held that the court has power, in any case where a voluntary winding up is superseded by a compulsory order, to review the remuneration which the members in a members voluntary winding up or the committee of inspection or the cr
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editors in a creditors voluntary winding up have fixed as payable to the liquidator. " But this decision is of no assistance to him because there has been no winding up by court in this case. The voluntary winding up has been brought under court's supervision this is not the same thing as winding up by the Court Itself.