Full Judgment Text
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PETITIONER:
K. JOSEPH AUGUSTHI AND TWO ORS.
Vs.
RESPONDENT:
M. A. NARAYANAN, OFFICIAL LIQUIDATOR,PALAI CENTRAL BANK LT
DATE OF JUDGMENT:
11/03/1964
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
SIKRI, S.M.
CITATION:
1964 AIR 1552 1964 SCR (7) 137
CITATOR INFO :
F 1965 SC 654 (5,6,7)
RF 1981 SC 379 (62,68)
ACT:
Banking Companies Act-Banking Company under liquidation-
Public examination of directors ordered-Section 45G of the
Act does not violate Art. 20(3)-Elements of self incrimina-
tion-Acts and omissions of directors need not be criminal-It
is sufficient if they are commercially unsound-Ordinary
public examination-Court has to see only that a prima facie
case is established--Constitution of India, Art. 20(3)-
Banking Companies Act, 1949 (X of 1949), s. 45G.
HEADNOTE:
The appellants were directors of Palai Central Bank Ltd. OD
an application made by the Reserve Bank of India the High
Court of Kerala ordered the winding up of the Bank and
appointed an Official Liquidator who filed a number of
reports under s. 45G(1) of Banking Companies Act, 1949. The
appellants filed their objections and the learned single
Judge after hearing the parties made an order directing the
public examination of the appellants under s. 45G(2) of the
Act. After appealing without success to a Division Bench
the appellants filed the present ,appeals on a certificate
granted by the High Court.
It was contended on behalf of the appellants that the provi-
sion of s. 45G(2) in as much as it would compel a person
ordered to be publicly examined to be a witness against
himself is violative of Art. 20(3) of the Constitution and
therefore bad. It was further contended that the acts or
omissions alleged as contemplated by s. 45G(1) should be
acts or omissions which are prohibited by law or enjoined by
law and on this basis the reports of the Liquidator have not
made out a case for public examination. The third
contention was that the High Court has misconstrued the
effect of the provisions of s. 45G and has refused to give
an opportunity to the appellants.
Held:A person examined publicly under s. 45G may in some
cases be compelled to be a witness against himself and thus
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one elementof Art. 20(3) is satisfied. But it is only when
a person can be said to have been accused of an offence that
the prohibition prescribed by Art. 20(3) comes into
operation. If a person who is not accused of any offence,
is compelled to give evidence and it ultimately leads to an
accusation against him, that would not be a case which would
attract the provisions of Art. 20(3). After the examination
under s. 45G is over and materials adduced before the court
have been examined by the court an occasion may or may not
arise to take any action. In such a case, what may
-conceivably follow cannot said to be existing before the
order is passed under s. 45G; an accusation may follow the
enquiry but an accusation is not in existence at the time
when public examination is ordered. Hence the appellant
cannot be said to have been accused. Since the essential
condition precedent for the application of Art. 20(3) is
absent in all cases covered by s. 45C it cannot be said that
s. 45G is violative of Art. 20(3) of the Constitution.
138
Mallala Suryanarayana v. Vijaya Commercial Bank Ltd. decided
on 26-10-61 (C.A. No. 286/59) and a a Narayaulal Bansilal v.
Maneck Phiroz Mistry and Anr., A.I.R. 1961 S.C. 29, referred
to.
(ii) The acts or omissions contemplated under s. 45G need
not necessarily be criminal, they may even include acts or
omissions which are commercially unsound or unwise. The
court has only to see whether the acts or omissions "as to
the promo tion or formation or the conduct of the business
of the banking company or as to his conduct and dealings in
so far as they relate to the affairs of the banking company"
have led to loss to the banking company. For this, what the
court can and should do is to read the report submitted by
the Official Liquidator, consider whether the opinion
expressed in the report appears to be prima facie
reasonable, hear the explanation of the persons concerned;
and find Out Prima facie whether the explanation tendered by
the person is sufficient to reject the liquidator’s’ request
for such person’s public examination and whether on the
whole it is just and beneficial to the interest of the
banking company that public examination should be held. The
High Court has dealt with the matter precisely in this way
in the present case and hence the appellants cannot have any
grievance.
Ex parte George Stapylton Barnes, (1896) A.C. 146, Sir Fazal
Ibrahim Rahimtoola v. Appabhai C. Desai, A.I.R. 1949 Bom.
339 and The Ahmedabad Advance Spinning and Weaving Co. v.
Lakshmishankar, I.L.R. 30 Bom. 173, distinguished.
(iii) Applying the above principles and examining the
reports submitted by the Official Liquidator it is clear
that the courts below have taken into account those reports
and after considering the objections raised by the
appellant, they have come to the right conclusion that the
appellants should face a public examination.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 254 to 256
of 1963.
V. A. S. Muhammad, for the appellant (in C.A. No. 254/63)
J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for
the appellants (in C.A. Nos. 255 and 256 of 1963).
M. C. Setalvad, Atiqur Rehman, Shureshta Kumari and K.
L. Hathi, for the respondent (in all the appeals).
March 11, 1964. The Judgment of the Court was delivered by
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GAJENDRAGADKAR, C. J.-Two questions of law have been raised,
before us by Dr. Seyid Muhammad on behalf of K. Joseph
Augusthi, the appellant in Civil Appeal No. 254/ 1963. Both
of them are related to section 45G of the Banking Companies
Act, 1949 (No. X of 1949) (hereinafter called the Act).
The first question raised has reference to the validity of
the said section and the second to its true scope and
effect. Dr. Seyid Muhammad contends that the answers given
by the Kerala High Court to both these questions are
erroneous
139
According to him, s. 45 G is unconstitutional inasmuch as it
contravenes the fundamental right guaranteed to the citizens
of this country by Art. 20(3) of the Constitution. He also
argues that in making an order for the public examination of
the appellant, the High Court has misconstrued the scope and
effect of the relevant provisions of the said section.
The appellant Joseph Augusthi was the Managing Director of
the Palai Central Bank Limited from 26-1-1927 to 8-8-1960;
K. George Thomas and George Joseph who are the appellants in
the two other appeals Nos. 255 and 256 of 1963 respectively,
were the Directors of the said Bank-, the first of them was
the Director from 14-1-1935 to 8-8-1960 and the latter from
26-1-1927 to 8-8-1960.
An application for the winding up of the said Bank was made
before the Kerala High Court by the Reserve Bank under
section 38(3)(b)(iii) of the Act. The said provision justi-
fies the making of an application by the Reserve Bank in
case in the opinion of the Reserve Bank, the continuance of
the banking company in question is prejudicial to the
interests of the depositors. On the 8th August, 1960, an
order was passed on the said application appointing the
Official Liquidator of the High Court the Provisional
Liquidator of the Bank. The order of winding up then
followed on the 5th December, 1960, and on the 8th December,
1960, an Official Liquidator was appointed under s. 39 of
the Act. After the Official Liquidator came on the scene,
he made three reports to the High Court report No. 192 on
the 17th August, 1961; report No. 242 on the 29th September,
1961 and report No. 350 on the 4th December 1961. All these
reports were made under s. 45G(1) of the Act. The
appellants filed their objections on the 23rd November, 1961
to the first two reports. The matter was then ,considered
by the learned single Judge of the Kerala High Court and
after hearing the parties, he made an order directing the
public examination of the three appellants under s. 45G(2).
This order was challenged by the appellants by preferring
three appeals before a Division Bench of the High Court.
The Division Bench agreed with the view taken by the learned
single Judge and dismissed the three appeals. The
appellants then applied for and obtained certificates from
the High Court and it is with the said certificates that
they have come to this Court by the present three appeals.
The first point which has been argued before us by Dr. Seyid
Muhammad is that s. 45G is unconstitutional because it
contravenes the fundamental rights guaranteed by Art. 20(3).
In order to appreciate this argument, it is necessary to
read s. 45G(1) & (2).
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"(1) Where an order has been made for the
winding up of a banking company, the official
liquidator shall submit a report whether in
his opinion any loss has been caused to the
banking company since its formation by any act
or omission (whether or not a fraud has been
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committed by such act or omission) of any
person in the promotion or formation of the
banking company or of any director or auditor
of the banking company.
(2) If, on consideration of the report
submitted under sub-section (1), the High
Court is of opinion that any person who has
taken part in the promotion or formation of
the banking company or has been a director or
an auditor of the banking company should be
publicly examined, it shall hold a public
sitting on a date to be appointed for that
purpose and direct that such person, director
or auditor shall attend thereat and shall be
publicly examined as to the promotion or
formation or the conduct of the business of
the banking company, or as to his conduct and
dealings, in so far as they relate to the
affairs of the banking company:
Provided that no such person shall be publicly
examined unless he has been given an
opportunity to show cause why he should not be
so examined."
The other sub-sections of this section need not be cited,
because it would be enough for our purpose to notice, in
substance, what their effect is. Sub-section (3) allows the
Official Liquidator to take part in the examination and to
employ such legal assistance as may be sanctioned by the
High Court, if he is specially authorised by the High Court
in that behalf. Sub-section (4) permits the creditor or
contributory to take part in the examination either
personally or by any person entitled to appear in the High
Court. Sub-section (5) gives authority to the High Court to
put questions to the person who is being examined; sub-
section (6) empowers oath to be administered to the said
person and compels him to answer questions as may be put to
him by the High Court, or as the High Court may allow to be
put to him. Under sub-section (7), such a person is
entitled to appear by a lawyer and the lawyer so appointed
shall be at liberty to put to him such questions as the High
Court may deem fit just for the purpose of enabling him to
explain or qualify any answer given by him; there is a
proviso to this sub-section which authorises the High Court
to make an order of costs in its discretion in case the
person under examination is exculpated from any charges made
or suggested against him. Sub-section (8) deals with the
procedure to be followed in keeping a record of the
examination. Subsection (9) provides that where after the
examination of the
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person,the High Court is satisfied that a person, who has
been a Director of the banking company, is not fit to be a
director of a company, or an auditor, or a partner who has
been acting as such auditor, is not fit to be such an
auditor or partner, the High Court may make an order that
that person shall not, without the leave of the High Court,
be a director of, or in any way, whether directly or
indirectly, be concerned or take part in the management of,
any company, or, as the case may be, act as an auditor of,
or be a partner of a firm acting as auditors of, any company
for such period not exceeding five years as may be specified
in the order.
Thus, it will be clear that the scheme of s. 45G is first to
decide whether, prima facie, there is a, case for the public
examination of a person; then in deciding this question,
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give an opportunity to the person concerned; if it is
decided to hold a public examination of the said person,
proceed to hold that examination; if suggestions made
against the person examined are found to be unwarranted,
make an order of costs in his favour; and if the person
concerned is found to have been responsible for acts or
omissions which caused loss to the banking company, to make
a penal order disqualifying such person from acting as a
director or an auditor as indicated by subsection (9). It
is in the light of this scheme that the argument about the
contravention of Art. 20(3) falls to be examined.
Article 20(3) provides that no person accused of any offence
shall be compelled to be a witness against himself. it may
be conceded that when a person is compelled to submit to a
public examination, that itself. prima facie, looks like
pillorying him in the public gaze. It is also true that s.
45G(6) compels the person to answer questions which the High
Court may put to him, or which the High Court may allow to
be put to him, and it is quite likely that in cases where
public examination is ordered to be held, some suggestions
and even some charges may be levelled against the person
examined by reference to his acts or omissions in relation
to the promotion, formation or conduct of the banking
company of which he was a director or an auditor.
Therefore, there is no difficulty in holding that a person
examined publicly under s. 45G may, in some cases, be
compelled to be a witness against himself. Thus, one
element of Art. 20(3) is satisfied-, but the question still
remains whether the other essential element is satisfied or
not.
Article 20(3) guarantees to every citizen the fundamental
right not to be compelled to be a witness against himself,
provided the person who is being compelled in that way, is
accused of any offence. In other words, it is only when a
person can be said to have been accused of any offence that
the prohibition prescribed by Art. 20(3) comes into
operation. If a person who is not accused of any offence,
is compelled to give
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evidence, and evidence taken from him under compulsion
ultimately leads to an accusation against him, that would
not be a case which would attract the provisions of Art.
20(3). The main object of Art. 20(3) is to give protection
to an accused person not to be compelled to incriminate
himself and that is in consonance with the basic principle
of criminal law accepted in our country that an accused
person is entitled to rely on the presumption of innocence
in his favour and cannot be compelled to swear against
himself. Therefore, unless it is shown that a person
ordered to be publicly examined under s. 45G is, before, or
at the time when the order for examining him publicly is
passed, an accused person, Art. 20(3) will not apply.
What then is the position with regard to a person against
whom an order for public examination is made by the High
Court as done against the appellants? All that has happened
at the relevant time is that the official liquidator has
submitted reports indicating that in his ’opinion, loss has
been caused to the banking company under liquidation by the
acts or omissions of the appellants, and the High Court, on
considering the reports and taking into account the
explanation ,given by the appellant, has come to the
conclusion that, prima facie, a case has been made out for
their public examination. In such a case, how can it be
said that the appellants have been accused of any offence?
The whole object of the enquiry is to collect evidence and
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decide whether any acts or omissions caused loss to the
banking company. It may be that as a result of the enquiry,
the court may reach the conclusion that the alleged acts or
omissions did not cause any loss; in such a case, nothing
further has to be done. On the other hand, it is likely
that the opinion formed by the liquidator may be vindicated
and the court may come to the conclusion that some or all of
the acts or omissions on which the liquidator’s opinion was
based did cause loss to the banking company; and in that
case, some action may conceivably be taken against the
persons examined in addition to the action contemplated by
s. 45G(9). That, however, only means that after the
examination is over and the material adduced before the
court has been examined by the court, an occasion may or may
not arise to take any action. In such a case, what may
conceivably follow cannot be said to be existing before the
order is passed under s. 45G; an accusation may follow the
enquiry, but an accusation was not in existence at the time
when the public examination was ordered; and so, the
appellants cannot contend that they were accused of any
offence at the time when the order for their public
examination was passed by the High Court. The accusation of
any offence which is an essential condition for the
application of Art. 20(3) is a condition precedent for the
application of the principle prescribed by the said Article,
and since this essential condition is lacking in all cases
covered by sec-
143
tion 45G, it is difficult to sustain the argument that the
said section contravenes Art. 20(3). Therefore, we do not
think Dr. Seyid Muhammad is right in contending that s. 45G
is invalid on the ground that it contravenes Art. 20(3) of
the Constitution. It appears that in the case of Mallala
Suryanarayana v. The Vijaya Commercial Bank Ltd.(1), the
same view I has been expressed by this Court, though it may
be added that this question does not appear to have been
then elaborately argued.
In this connection, we may refer to a decision of this Court
in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Anr.
(2), where a somewhat similar provision contained in s. 240
of the old Companies Act fell to be considered and it was
held that it did not contravene Art. 20(3) of the Constitu-
tion.
That takes us to the question of the construction of s. 45G.
Dr. Seyid Muhammad contends that s. 45G requires that the
acts or omissions alleged against a person should be acts
which are prohibited by law, or omissions in relation to
acts the performance of which is enjoined by law, and he
suggested that if this interpretation is put on the words
"acts or omissions", it would appear that the reports made
by the liquidator in the present case have not made out any
case for the public examination of the appellants. We are
not impressed by this argument. It is significant that the
acts or omissions to which s. 45G(1) refers need not be
fraudulent acts or omissions, because, in terms, the section
provides that the act or omission would attract s. 45G(1) if
it has led to any loss to the banking company even though
fraud may not have been committed by such act or omission.
The context also shows that what the Court has to consider,
is whether any act or omission on the part of the director
or the auditor of the banking company has caused any loss to
the company. Now, such an act or omission need not
necessarily be criminal; it may even include acts or
omissions which are commercially unsound or unwise. In this
connection, it may be recalled that s. 478 of the Companies
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Act which deals with a similar problem, requires that the
report of the Official Liquidator should disclose his
opinion that a, fraud has been committed. To the same
effect is the provision contained in s. 268 of the English
Companies Act (11 & 12 Geo. 6, c 38). Therefore, it would,
we think, be unreasonable to put a narrow and restricted
construction on the words "acts or omissions" used by s.
45G(1).
Dr. Seyid Muhammad has then contended that in dealing with
the reports made by the liquidator in the present case, the
High Court has not given effect to the provision contained
in
(1) Civil Appeal No. 286 of 1959 decided on 26-10-1961.
(2) A.I.R. 1961 S.C. 29.
144
the proviso to s. 45G(2). The said proviso requires that no
person shall be publicly examined unless he has been given
an opportunity to show cause why he should not be so
examined, and Dr. Seyid Muhammad argues that unless the
matter is fully examined and an opportunity is given to him
to show that the facts alleged in the reports are untrue,
the requirements of the proviso will not have been satisfied
and his grievance is that no such opportunity was given to
the appellants in the present case. There is no substance
even in this argument. What the Court has to do in
exercising its power under s. 45G(2) is to consider the
report made by the liquidator and decide whether it can
reasonably entertain the opinion that any person who has
taken part in the promotion or formation ,or conduct of the
banking company should be publicly examined. In other words,
it is a preliminary stage of the enquiry and the point which
the Court has to consider is whether, prima facie, a case
has been made out to hold a public examination of the person
concerned. It cannot be the object of s. 45G(2) read with
the proviso that the Court should allow the appellants to
lead evidence rebutting the allegations made by the
liquidator in his reports, for if such a course was adopted,
it would itself develop into a full-fledged enquiry and the
very object of a limited enquiry at the initial stage would
be defeated. What the Court can and should do in such cases
is to read the report submitted by the Official Liquidator,
consider whether the opinion expressed in the report appears
to be, prima facie, reasonable; hear the explanation of the
person concerned; and find out prima facie whether the
explanation tendered by the person is sufficient to reject
the liquidator’s request for such person’s public
examination and whether, on the whole, it is just and
beneficial to the interest of the banking company that
public examination should be held. The subjectmatter of
this preliminary investigation is not the whole of the
enquiry on the merits; it is an enquiry as to whether the
director or the auditor should be publicly examined.
Therefore, we do not think Dr. Seyid Muhammad is justified
in contending that the High Court has ignored the safeguard
afforded to the appellants by the proviso s. 45G(2).
The question about the construction of s. 45G(1) & (2) does
not present any serious difficulty. What must be disclosed
by the report of the Official Liquidator is the act or
omission of the person there specified which has led to loss
to the banking company since its formation. The acts or
omissions to which s. 45G(1) refers, when considered in the
light of s. 45G (2), are acts or omissions "as to the
promotion, or formation, or the conduct of the business of
the banking company, or -,is to his conduct and dealings in
so far as they relate to the affairs of the banking
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company", so that after the report is made, the court takes
a broad and overall view of the state of
145
affairs disclosed by the report and considers prima facie
whether a case has been made out for the public examination
of the director or the auditor. We are satisfied that the
High Court has dealt with the matter precisely in this way,
and no Grievance can be made against its decision on the
ground that the provisions of the proviso to s. 45G(2) have
been ignored.
In support of his argument that the High Court has mis-
construed the effect of the provisions of s. 45G(1), Dr.
Seyid Muhammad referred to two decisions which may be
mentioned at this stage. The first of these is the decision
of the House of Lords in Ex parte George Stapylton
Barnes(1). In that case, the question which fell to be
considered was the scope and effect of s. 8(3) of the
Companies (Winding-up) Act, 1890; Lord Halsbury observed
that he entertained not the smallest doubt that the meaning
of this legislation is that, in order to give the Court
jurisdiction to make an order for public examination, there
must be a finding of fraud, and a finding of fraud against
an individual who is thereby made subject to being summoned
before the Court, and is compelled to answer, whether the
answer incriminates him or not, but, being exculpated,
receives his costs. He further observed: "I confess I am
unable, looking at the whole of the legislation on the
subject, to entertain the least doubt that that was what the
Legislature intended, and I am a little surprised, I
confess, that there should have been any doubt that fraud
must be found." In our opinion, this passage is hardly
relevant for our purpose, because as we have already
indicated, s. 45G(1) expressly provides that the act or
omission complained of need not necessarily be fraudulent,
and so, there can be no question, under s. 45G(1), of coming
to a conclusion that fraud has been committed before
directing public examination of a person.
The other decision on which Dr. Seyid Muhammad has relied is
the judgment of the Bombay High Court in Sir Fazal Ibrahim
Rahimtoola v. Appabhai C. Desai(2). In that case, dealing
with the provisions contained in s. 196 of the old Companies
Act, Chagla C.J. disapproved of the practice of ordering ex
parte public examination of persons. In that connection, he
quoted with approval the warning sounded by Sir Lawrence
Jenkins in the Ahmedabad Advance Spinning and Weaving
Company v. Lakshmishanker(3), that the practice of passing
ex parte orders involving the person affected in serious
liability is much to be deprecated. In that case, the
Bombay High Court was called upon to consider whether the
allegations made against the director were vague and
indefinite. As we will.
(1) [1896] A.C. 146 at P. 152.
(2)A.I.R. 1949 Bom. 339.
(3)I.L.R. 30 Bom. 173.
146
presently point out, that difficulty does not arise in the
present appeals. The allegations made by the liquidator in
his reports against the appellants are clear, precise and
definite.
Let us now refer to the reports submitted by the liquidator
in the present case. In his first report, the liquidator
has stated that in carrying out the affairs of the bank, the
Directors, with the help of officers appointed by them out
of their own relatives, have not properly conducted the
affairs of the bank. He has also stated that in his
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opinion, loss had been caused to the bank since its
formation by the acts and omissions of the Directors and of
the auditor of the bank. The report then proceeds to
specify the extent of the loss and the causes for the said
loss. It appears from the report that loans were advanced
by the bank without regard to the question of any adequate
security. In many cases, loans were advanced without any
security at all and the inevitable consequence has been that
a large number of debts have become barred by time long
before the winding up proceedings were started. The bank
appears to have paid dividends without earning profits.
Similarly, though it did not earn any profits between 1936
to 1958, it submitted reports showing substantial amounts as
net income and so, it has paid income-tax on the said
amounts. A large amount of advances appears to be
irrecoverable. At the end of his report, the liquidator has
mentioned 10 persons, including the three appellants before
us, whose acts and omissions, in his opinion, contributed to
loss to the banking company. Two further reports were made
by the liquidator and they support the opinion expressed by
him in his first report. The third of these reports was
filed after this matter was heard by the learned Single
Judge but the first two reports themselves fully justify the
order made by him, and so, the third report can well be left
out of consideration.
When we turn to the objections filed by the appellants, it
is clear that some of the facts are not seriously disputed.
Take, for instance, the allegation that dividends were
declared without earning profits. The appellant Joseph
Augusthi contended before the High Court that the bank used
to treat interests accrued on advances, though not received,
as income, and so, income-tax and super-tax were paid on
such income and dividends were also paid on the same basis.
He suggested that the Reserve Bank had noticed these facts
and had waived its objection. In other words, he relied on
a practice which is obviously unsound in a commercial sense
and pleaded that at this stage the Reserve Bank cannot
challenge the correctness or propriety of the said practice.
This practice has been described by the appellant as
mercantile system of accounting. It would thus be seen that
some of the facts alleged by the liquidator in his report
are not disputed; the effect of those facts was a matter of
argument between the parties before the High Court. In such
147
a case, we do not see how the appellants can successfully
challenge the correctness of the view taken by the High
Court that a case had been made out for the public
examination of the appellants. That is why we do not think
there is any substance in the argument urged before us by
Dr. Seyid Muhammad that on the facts, an opportunity had not
been given to the appellants to show that their public
examination should, not be ordered. We are satisfied that
in dealing with the facts of this case, the Courts below
have taken into account the reports made by the liquidator
and after considering the objections raised by the
appellants, they have come to the right conclusion that the
appellants should face a public examination.
The result is the appeals fail and are dismissed with costs.
One set of hearing fees.
Appeals dismissed.
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