otherwise. According to him, in the present case,
winding up order came to be passed on 11th February, 2004,
while the order of customs authority was much prior to
that i.e. on 30th October, 1999. Thus, there was no
necessity for the applicant to seek leave of this court.
The above submissions of learned advocate do not appeal
in as much as conjoint reading of sub-section (1) of
Section 446 envisage that when the Provisional Liquidator
is appointed by the court, the same shall not be
proceeded with. The disjunctive “or” following the
sentence “the Official Liquidator has been appointed as
Provisional Liquidator, no suit or other legal proceeding
shall be commenced” is in continuity and in the present
case, the Provisional Liquidator was already appointed on
16th February, 1999 and he has performed his duties as a
Liquidator and taken over the assets and properties
including 13 medical equipments of the Company in
liquidation and, therefore, the only remedy to the
applicant Department is to lodge its claim before the
Official Liquidator, as required under Section 530 of the
Companies Act, 1956. Even sub-section(2) of Section 446
enumerates power of the court to be exercised in
different circumstances, by which it can be safely
interpreted that leave of the court is necessary. So far
as the question with regard to consequences that might
follow, if the leave is not obtained, as envisaged under
sub-section(1) of Section 446 is concerned, no plea is
raised and, therefore, the same is not required to be
dealt with.
