# OFFICllL LIQUIDATOR v. DHARTI DHAN (P) LTD

- **Citation:** [1977] 2 S.C.R. 964
- **Court:** Supreme Court of India
- **Decided:** 1977-02-10
- **Case number:** Civil Appeal No. 126 of 1976
- **Bench:** M. H. Beg, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/officlll-liquidator-v-dharti-dhan-p-ltd-7130
- **Pages:** 9

## Headnote

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CO!.npan!es Act, 1956-:-Sections 442, 446-Power to stay proceedings whether d1scret10nary-Meamng of the word "may" occurring in s. 442.
'
Constitution of India, 1950-Article 136-Appeal bv special leave-Interference by Supreme Court-:-Scope of.
·
. The Company .Juqge in tl,ie .~(>mbay High Court directed on 3-1-1970 adverllsement of the ':"mdmg up petitmn filed by the Registrar of Companies in
Maharashtra agarnst the respond t company, one of the d'ebtors of the Gotcha
conwany to th~ .extent of Rs. 11 69,043/-.
The respondent company appealed
agamst the dec1s10n of the Company Judge and obtained an order dated
3rd
Febru1!ry, 1970, from a Division Bench staying the operation of the order of
advertisement of the winding up petition. As the respondent company defaulted
in the payment of two of its instalments, as agreed to between the Golcha company and the respondent company by agreements dated 25th June 1966 and
17th January 1967, the Official Liquidator of the Golcha company made a claim
under s. 446(2) of the Companies Act for the. recovery of a sum of Rs. 5 lac
before the Company Judge of the High Court of Rajasthan.
The respondent
company after obtaining an ord~r of stay of the proceedings against it in the
Bombay High Court made. another application under s. 442(b) of the Companies
Act in the Rajasthan High Court for staying of proceeding against it under s 446
(2) made by the appellant on the groilnd· that a compulsory wiriaing up petition
was perlding against it in the Bombay High Court. The Company Judge rejected
the application under s. 442(b) of the Act on 9-5-1974.
But, the
Division
Bench of the Rajasthan fligh Ct;mrt allowed the appeal against the stay order
and. ordered a conditional stay of ·iproceedings u/s. 446 (2) of the Act against the
respondent company.
On appeal by special leave, the Court,
HELD : (I) The clear object of s. 442 is that claims in suits and proceedings pending elsewhere which have a bearing on the company's liabilities may
be stayed only until the winding up order is made, because, after the winding
up order has been passed, s. 446 begins to operate so as to automatically transfer
with certain exceptions, proceediqgs against the company being wound up· to the
court exercising the jurisdiction Ito wind it up. [968 B-C]
(2) Sections 442 and 446 of the Act have to be read together.
It is only
where the object of the two sections, when read .together, is served by a stay order
that the stay order could be justified. That object 1s to exped1t10usly decide and
dispose of pending claims in the winding up proceedings.
A stay is not. to. be
granted if the object of applying for it al'pea_rs to be merely to delay adjudication on a claim, and, thereby, to defeat 1usllce.
In other words, a stay or~er
under s. 442 cannot be made me1hanically or, as a matter of course, on sho-:vm.g
fulfilment of some fixed and pr scribed c.onditions. It-can <;>nly be made Judiciously upon an examination of the totality of the facts which vary from case
to case
It follows that the order to be passed must be discretionary and the
powe'r to pass it must, therefore, be directory and not mandatory. [969 B-D]
(3) The word "may" used before stay u/s. 442 of the Companies ~ct .really
means "may" and not "must" or "shall" in such a context. In fact, 1t _1s not
quite accurate to say that the word "may" by itself acquire~ t~e meanmg of
"must" or "shall" sometimes.
This word, however, always stgmfies. a co.nfer,-
ment of that power. That power may, having r~gard to ~he context m which !t
occurs and the requirements contemplated for its exercise have annexed to 1t
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OFFICIAL LIQUIDATOR V. DHARTI DHAN
965
an obligation which compels its exercise in a certain way on facts and circum·
A
stances from which the obligation to exercise it in that way arises.
In other
words, it is the context which can attach the obligation to the power compelling
its exercise in a certain way. The context both legal and factual may impart to
the power th

## Text

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964
OFFICllL LIQUIDATOR
v.
DHARTI DHAN (P) LTD.
February 10, 1977
(M. H. BEG, C.J. AND P. S. KAILASAM, J.]
I
CO!.npan!es Act, 1956-:-Sections 442, 446-Power to stay proceedings whether d1scret10nary-Meamng of the word "may" occurring in s. 442.
'
Constitution of India, 1950-Article 136-Appeal bv special leave-Interference by Supreme Court-:-Scope of.
·
. The Company .Juqge in tl,ie .~(>mbay High Court directed on 3-1-1970 adverllsement of the ':"mdmg up petitmn filed by the Registrar of Companies in
Maharashtra agarnst the respond t company, one of the d'ebtors of the Gotcha
conwany to th~ .extent of Rs. 11 69,043/-.
The respondent company appealed
agamst the dec1s10n of the Company Judge and obtained an order dated
3rd
Febru1!ry, 1970, from a Division Bench staying the operation of the order of
advertisement of the winding up petition. As the respondent company defaulted
in the payment of two of its instalments, as agreed to between the Golcha company and the respondent company by agreements dated 25th June 1966 and
17th January 1967, the Official Liquidator of the Golcha company made a claim
under s. 446(2) of the Companies Act for the. recovery of a sum of Rs. 5 lac
before the Company Judge of the High Court of Rajasthan.
The respondent
company after obtaining an ord~r of stay of the proceedings against it in the
Bombay High Court made. another application under s. 442(b) of the Companies
Act in the Rajasthan High Court for staying of proceeding against it under s 446
(2) made by the appellant on the groilnd· that a compulsory wiriaing up petition
was perlding against it in the Bombay High Court. The Company Judge rejected
the application under s. 442(b) of the Act on 9-5-1974.
But, the
Division
Bench of the Rajasthan fligh Ct;mrt allowed the appeal against the stay order
and. ordered a conditional stay of ·iproceedings u/s. 446 (2) of the Act against the
respondent company.
On appeal by special leave, the Court,
HELD : (I) The clear object of s. 442 is that claims in suits and proceedings pending elsewhere which have a bearing on the company's liabilities may
be stayed only until the winding up order is made, because, after the winding
up order has been passed, s. 446 begins to operate so as to automatically transfer
with certain exceptions, proceediqgs against the company being wound up· to the
court exercising the jurisdiction Ito wind it up. [968 B-C]
(2) Sections 442 and 446 of the Act have to be read together.
It is only
where the object of the two sections, when read .together, is served by a stay order
that the stay order could be justified. That object 1s to exped1t10usly decide and
dispose of pending claims in the winding up proceedings.
A stay is not. to. be
granted if the object of applying for it al'pea_rs to be merely to delay adjudication on a claim, and, thereby, to defeat 1usllce.
In other words, a stay or~er
under s. 442 cannot be made me1hanically or, as a matter of course, on sho-:vm.g
fulfilment of some fixed and pr scribed c.onditions. It-can <;>nly be made Judiciously upon an examination of the totality of the facts which vary from case
to case
It follows that the order to be passed must be discretionary and the
powe'r to pass it must, therefore, be directory and not mandatory. [969 B-D]
(3) The word "may" used before stay u/s. 442 of the Companies ~ct .really
means "may" and not "must" or "shall" in such a context. In fact, 1t _1s not
quite accurate to say that the word "may" by itself acquire~ t~e meanmg of
"must" or "shall" sometimes.
This word, however, always stgmfies. a co.nfer,-
ment of that power. That power may, having r~gard to ~he context m which !t
occurs and the requirements contemplated for its exercise have annexed to 1t
'
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OFFICIAL LIQUIDATOR V. DHARTI DHAN
965
an obligation which compels its exercise in a certain way on facts and circum·
A
stances from which the obligation to exercise it in that way arises.
In other
words, it is the context which can attach the obligation to the power compelling
its exercise in a certain way. The context both legal and factual may impart to
the power that obligatoriness. [969 D·F]
( 4) Thus, the question to be determined in such cases always is whether the·
power conferred by -the use of the word "may" has annexed to it an obligation,
that, on the fulfilment of certain legally prescribed conditions to be shown by
"'·
evidence, a particular kind of order must be made. In such a case, it is always
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the purpose of the power which has to. be examined in order to determine the
scope of the discretion conferred t1pon the donee of the power. If the conditions
in which the power is to be exercised in particular cases are also specified by a
statute, then, on the fulfilment of those conditions, the power conferred becomes
annexed with a duty to exercise it in that manner. [969 F-970 G-H]
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Frederic Guilder Julius v. Tl1e Right Rev. The Lord Bishop of Oxford : The
'
Rev. Thomas Thelusson Carder 5 A.C. 214, quoted with approval.
Bhaiya Punja/al Bhagwandin v. Dave Blwgwatprasad Prabhuprasad [1963] 3
SCR 312 : State of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197; Sardar
Govindrao & Ors. v. State of M. P. [1965] 1 SCR 678; Shri A. C. Aggarwal, SubDivisional Magistrate, Delhi & Anr. v. Smt. Ram Kali etc. [1968] 1 SCR 205;
Bashira ·,, State of U.P. [1969] 1 SCR 32 and Prakash Chand Agarwal & Ors. v.
M/s. Hindustan Steel Ltd. [1972] 1 SCR 405, applied.
( 5) In s. 442 of the Companies Act the power to stay a proceeding is not'
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annexed with the obligation to nec;essarily stay on proof of certain conditions
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although there are conditions prescribed for the making of the application for
stay and the period during which the power to stay can be exercised.
The·
question whether it should, on the facts of a particular case, be exercised or not
will have to be examined and then decided by the court to which the application·
is made. If the applicant can make out, on facts, that the objects of the power
conferred by ss. 442 and 446 of the Act can only be carried out by a stay order,
it could perhaps be urged that an obligation to do so becomes annexed to it by
proof of those facts. .That would be the position in case the word "may" itself
must be equated with "shall", but because judicial power has necessarily to be
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exercised justly, properly and reasonably to enforce. the principle · that rights
created must be enforced. [971 B-Dl
(6) In such ;:ases, the only right which could be said to have been created
is the right to get speedier adjudication from the court where the winding up
proceeding is taking_place. That is the object of the provisions. / On facts_ disclosed, if it' be found tli.at the application has been made with the objeQ: of
delaying decisions on claims made, the application should be rejected outright.
[971 D-El
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(7) In the instant case the object of the respondent company appears to be
to obtain an indefinite stay of proceedings against it in both High Courts.
This
being a correct inference, the stay application under s. 442(b) of the Companies
Act could not be a bona fide one, but an abuse of tlie processes of the court.
[966 F-G]
(8) It is true that the Supreme Court does not, as a rule interfere with interlocutory orders. The powers of interference under Art. 136 of the Constitution
by the Supreme Court are not confined to those in respect of final orders, although finality of an order is a test which the Supreme Court generaJly applies
in considering whether .it shonld interfere under Art. 136 of the Constitution
with it. [972 B-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 126 of 1976.
(Appeal by Special leave from the Judgment and Order dated
the 11th October, 1974 of the Rajasthan High Court in D.B. Special
Appeal No. 111 of 1974)
L. N. Sinha, Sol. Gen. and Suresh Sethi, for the appellant.
C. K. Garg, S. S. Khanduja and C. L. Sahu, for respondent.
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966
SUPREME COURT RllPORTS
The Judgment of the Court was delivered by
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[1977] 2 s.c.R.
BEG, C.J.-The Official Liquidator attached to the High Court of
Rajasthan, in-charge of the
1 liquidation of Golcha Properties (Pvt.)
Ltd., (hereinafter referred to as 'Golcha Company'), has come up in
appeal to this Court by special leave against a judgment and order of
a Division Bench of that High Court, passed on a Special Appeal
from the judgment and order: of a single Judge of that Court.
On
petitions presented on 4th
1July 1966 and 30th July 1966 by the
creditors of Golcha Company, the High Court had made a compulsory
winding up order on 10th May 1968; and, on that very date, the
appellant was appointed liqtlidator of the
Golcha
company.
The
Dharti Dhan (Pvt.) Ltd., (hereinafter referred to as the 'Dhan Company'), with its registered ofjice at Bombay, was said to be one of the
debtors of the Golcha Company to the extent of Rs. 11,69 ,043 /-
together with interest and commission which was said to be still due
on 1st August 1969.
Agreements dated 25.6.66 and 17.1.67 between the two companies regulated the method of repayment by annual
instalments of Rs. 2,50,0oq;- according to the appellant.
As the
respondent, Dhan Company, is said to have defaulted in the payment
of two of its instalments, a claim under section 446(2) of the Companies Act (hereinafter referred to as 'the Act') for the recovery of
a sum of Rs. 5,00,000/- was made before the Company Judge of the
High Court of Rajasthan b)! the appel!lmt.
On 20th September 1969, the Registrar of Companies in
Maharashtra had to file a w1nding up petition against the respondent
T)han Company in the Bombay High Court.
The Company Judge in
the Bombay High Court on 3rd January, 1970, directed advertisement
of the winding up petition. IThe respondent Dhan Company appealed
against the decision of the Company Judge and obtained an order,
dated 3rd February, 1970, from a Division Bench staying the operation of the order for advertisement of the winding up petition.
An
appeal against that order is. said be still
pending so that a stay of
those proceedings operates.
1
After obtaining an orde~ of stay of the proceedings against it in
the Bombay High Court, tne Dhan Company made an application
under s. 442(b) of the Act in the Rajasthan High Court for stay of
proceedings against it u/s. 446(2) on the ground that a compulsory
winding up petition was pending against it in the Bombay High Court.
The object of the respondent Dhan Company appeared to be to obtain
an indefinite stay of proceedings againsts it in both. High Courts.
H
this is a correct inference, as it appears to us to be, the stay application under s. 442(b) of tpe Companies Act would not be a _bona
fide one.
It looks more like an abu·se of the process of the Court.
It is, therefore, not surprising that the learned Company Judge of the
Rajasthan High Court rejected the Dhan
Company's
application:
under s. 442 (b) of the Act on 9th May 1974. It is, however, somewhat surprising that a Division Bench of that High Court should haw
allowed an appeal from the judgment of the Company Judge and
ordered stay of proceedings under s. 446(2) of the Act against the
respondent Dhan Company, even though this was subjected to the
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OFFICIAL LIQUIDATOR v. DHARTI DHAN (Beg, C.J.)
967
condition that "the appellant Company
produces the entire docuA;
mentary evidence inclusive of account-books, vouchers, files and other
documents and papers in its possession or power relatin~ to ~he .claim
in question, as it may desire to produce or the Official _L1qut.dat~r
desires to summon or as the learned Company Judge may direct m his
discretion and also produces a list of witnesses that the appellant company may desire, to examine in its defence in respect of the claim in
question along with an affidavit of what each witness is likely to deB:
pose".
Thus, the Division Bench had, while making the stay order,
attempted to safeguard the interests of the Golcha Company by making an order which, in the opinion of the Division Bench, would prevent valuable evidence from being lost due to either the death or the
fading memory of a witness or other causes.
Learned Solicitor-General, appearing for the appellant,
Official
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Liquidator of the Golcha Company, gave up the objection, taken in
the special leave petition, to the maintainability of an appeal to a
Division Bench from the order of the Companyi Judge in view of the
provision of section 483 of the Act, which lays down :
"483. Appeals from any order made or decision given
in the matter of the winding up of a company by the Court
shall lie to the same Court to which, in the same manner in
which and subject to the same
conditions
under whici1,
appeals lie from any order or decision of the (::ourt in cases
within its ordinary jurisdiction".
The Solicitor-General, however, submits that, on merits, the order of
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the learned Company Judge, dismissing the application of the Dhan
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Company for stay of proceedings under s. 442(b) of the' Act, deserves to be restored as no grounds for interference with the proper
exercise of his discretion by the learned Company Judge existed at
all.
We highly appreciate the brevity of this submission, after the
Solicitor-General had, very rightly and properly, conceded
that he
could not urge that the . Division Bench had not jurisdiction to hear
the appeal before it.
No effective answer could be given
to
the
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Solicitor-General's submission by the learned counsel for the respondent.
We will, however, deal with the strenuous arguments advanced
on behalf of the respondent even if it be to disclose how untenable
they are.
Firstly, learned counsel for the
respondent contends that
the
power to stay proceedings, contained in s. 442 (b) of the Act, is
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bound to be exercised when certain conditions, said to be found in
the case before us, are fulfilled.
This
submission rests on a misapprehension of the object of s. 442 which lays down :
"442. At any time after the presentation of a, winding
up petition and before a winding up order has been made,
the col!lpany, or: any creditor or contributory, may-
· (a) where any suit or proceeding against the company
is pending in the Supreme Court or in any High Court, apply
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SUPREME COURT REPORTS
(1977) 2 S.C.R.
A
to _!he Court in which the suit or proceeding is pending for
a stay of proceedings therein; and
(b) where any suit or proceeding is pending against the
company in any other court,
apply to the Court having
jurisdiction to wind up the company, to
restrain further
proceedings in the suit .or proceeding;
and the Court to which application is so made may stay
or restrain the proceedings accordingly on such terms as it
thinks fit".
The clear object of the section is that claims in suits in and proceeding pending elsewhere which have a bearing on the company's
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liabilities, may be stayed only until the winding up order is made,
because, after the winding up order has been passed, section 446
begins to operate so as to automatically transfer with certain exceptions proceedings against the company being wound up to the Court
exercising the jurisdiction to ,wind it up.
Section 446 reads :
"446.(1) When a winding up order has been made or
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the Official Liquidator has been appointed as provisional
lici,uidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order,
shall be proceeded with against the company, except by
leave of the Court and subject to such terms as the Court
may impose.
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(2) The Court which is winding up the company shall,
notwithstanding anything contained in any other law for the
time being in force, have jurisdiction to entertain, or dispose
of-
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company (including claims by or against any of its
branches
in
Jndi'a);
(c) any application made under section 391 by or in
respect of the company;
(d) any question of priorities or any
other
question
whatsoever, whether of law or fact, which may relate
to or arise in course of the winding up of the company;
whether such suit or proceeding has been instituted or is
instituted, or such claim or question has arisen or arises or
such application has been made or is made before or after
the order for the winding up of the company, or before or
after the commencement of the Companies (Amendment)
Act, 1960.
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()FFICIAL LIQUIDATOR V. DHARTI DHAN (Beg, C.J.)
96 9
(3) Any suit or proceeding by or against the company
which is pending in any Court other than that in which the
·winding up of the company is P._roceeding may, notwithstandA
ing anything contained in any other law for the time being
in force, be transferred to and disposed of by that Court.
(4) Nothing in sub-section (1) or sub-section (3) shall
apply to any proceeding pending in appeal before the Supreme Court or a High Court".
B
Sections 442 and 446 of the Act have to be read together. It
:is only where the object of the two sections, when read together, is
served by a stay order that the stay order could be justified.
That
object is
to expeditiously decide and dispose of pending claims in
the course of winding up proceedings.
A stay is not to be granted
if the object of applying for it appears to be, as it does in the ca~e
before us, merely to delay adjudication on a claim, and, thereby to
defeat justice.
Jn other words, a stay order, under
section
442,
-cannot be made mechanically, or, as a matter of course, on showing
fulfilment of some fixed and prescribed conditions. It can only be
made judid.:msly upon an examination of the totality of the facts
which very from case to case.
It follows that the order to be passed.
must be discretionary and the power to pass it must, therefore, be
directory and not mandatory.
Jn other words, the word "may",
used before "stay" in section 442 of the Act really means "may" and
not "must" or "shall"· in such a context.
In fact, it is not quite
accurate to say that the word "may", by itself, acquires the meaning
of "must" or "shall"
sometimes.
This
word,
however,
always
signifies a conferment of power.
That power may, having regard to
the context in which it occurs, and the requirements contemplated
for its exercise, have annexed to it an obligation which compels its
exercise in a certain way on facts and circumstances from which the
obligation to exercise it in that way arises.
In other words, it is
the context which can attach the obligation to the power compelling
its exercise in a certain way.
The. context, both legal and factual,
may impart to the power that obligatoriness.
Thus, the question to be determined in such cases always is,
whether the power conferred by the use of the word
"may" has,
annexed to it, an obligation that, on the fulfilment of cretai'Il legally
prescribed conditions, to be shown by evidence, a particular kind
of order must be made.
If the statute leaves no room for discretion
the power has to be exercised in the manner indicated by the~ other
legal provisions which provide the legal context.
Even . then
the
facts must establish that the legal conditions are fulfilled.
A power
is exercised even when the Court rejects an application to exercise
it. in the particular way in which the applicant desires it to be exercised.
Where the power is wide enough to cover both an acceptance
and a refusal of an applicati'on for its
exercise, depending upon
facts, it is directory or discretionary.
It is not the conferment of a
power whic~ the word "may" indicates that annexe~ any ?bligatiOJ]
to its exercise but the legal and factual context of 1t.
This, as we
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SUPREME COURT REPO]l.TS
[1977] 2 s.c.R.
understand it, was the principal laid down in the case cited before us ~
Frederic Guilder Julius v. 'fhe Right Rev. The Lord
Bishop
oj
Oxford; The Rev. Thomas Thellusson Carter.(')
Dr. . Julius, in the case mentioned above, had made an application
to the Bishop of Oxford against the Rector of a parish, asking the
Bishop to issue a commission under the Church Discipline Act to
enquire against certain unauthorised deviations from the ritual in
a Church by the Rector.
The relevant statute merely conferred a
power by laying down that "it shall be lawful" to issue a commission.
The Courts of Queens Bench and of Appeal in England had differed
on the question whether a mandamus from the Court could
go to
the Bishop commanding him to issue a commission for !he purpose
of maki•ng the enquiry.
The House of Lords held that the power to
issue the commission was not ccmpled with a duty to exercise it in
every case although there may be cases where duties towards members
of the public to exercise a power may also be coupled with a duty
to. exercise it in a particular way on fulfilment of certain specified
conditions. The statute consi'clered there had not
specified
those
conditions. Hence, it was a bare power to issue or not to issue the
commission.
Lord Blackburn said: (at p. 241) :
"I do not think the words 'it shall be lawful' are in
themselves ambiguous at all.
They are apt words to express that a power is given ; and as, prima f acie, the donee
of a power may either exerdse it or leave it unused, it is
not inaccurate to say that, prima facie, they are equivalent
to saying that the donee may do it; but if the object for
which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the
power, to exercise it for the benefit of those who have that
right, when required on their behalf.
Where there is such
a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that
the
donee
must exercise it. It by no means follows
that because
there is a duty cast on the donee of a power to exercise
it, that mandamus lies to enforce it : that depends on the
nature of the duty and the position of the donee".
The principl~ laid down above has been followed consistently
by this Court whenever it has been contended that the word "may"
carries with it the obligation to exercise a power in a particular
manner or direction.
In such a case, it is always the purpose of
the power which has to be examined in order to determine the
scope of the discretion conferred upon the donee of the power. If
the conditions in which the power is to be exercised in particular
cases are also specified by a statute then, on the fulfilment of those
conditions, the power conferred becomes annexed with a duty to
exercise it in that manner.
This is the prjnciple we deduce from the
cases of this Court cited before us : Bhaiya Punjalal Bhagwandin v.
(1) 5 A.C. 214.
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OFFICIAL LIQUIDATOR v. DHARTI OHAN (Beg, C.J.)
97 f
Dave Bhagwatprasad Prabhuprasad,(') State of Uttar Pradesh v.
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Jogendra Singh,(2) Sardar Govindrao & Ors. v. State of M.P.,( 8 )
Shri A. C. Aggarwal, Sub-Divisional Magistrate,
Delhi & Anr. v.
Smt. Ram Kali etc.,(") Bashira v. State of U.P.,(•) and Prakash
Chand Agarwal & Ors. v. M/s. Hindustan Steel Ltd.( 6)
In the statutory provision under consideration now before us the
power to stay a
proceeding is not
annexed with the
obligation
to necessarily stay on proof of certain conditions although there are
conditions prescribed for the making of the application for stay and
·the period during which the power to stay can be exercised.
The
question whether it should, on the facts of a praticular case,
be
exercised or not will have to be examined and then decided by the
Court to which the application is made. If the applicant can make
out, on facts, that the objects of the power conferred by ss. 442 and
446 of the Act, can only be carried out by a stay order, it could
perhaps be urged that an obligation to do so has become . annexed
to it by proof of those facts.
That would be the position
not
because the word "may" itself must be equated with "shall"
but
because judicial power has necessarily to be exercised justly, properly, and reasonably to enforce the principle that rights created must
b!l enforced.
In the case before us, the only right which could be said to
have been created is the right to get speedier adjudication from the
Court where the winding up proceeding is taking place.
That is the
object of the provisions. On facts disclosed in this case, we find
that the application seems to have been made with the object of
delaying decisions on claims made. In such a case, there could be
no doubt that the application should be rejected
outright as
the
learned Company Judge did.
Secondly, an attempt was made to urge that the power to grant
or not to grant or to grant a stay upon certain conditions, assuming
the power to be discretionary, is to be exercised by the Courts in
which that discretion is vested, this Court should not interfere with
the exercise of discretion by the Division Bench to which an appeal
from the order of the Company Judge lay.
The effective answer
to this contention is that, where the learned Company Judge had
himself exercised his discretion on a correct appreciation of the object
of the provisions of ss. 442 and 446 of the Act, even though he
did- not state the obJect or refer to all the facts, the Appellate Court
should not have interfered by granting a conditional
stay without
giving sufficient reasons to over-ride the discretion of the learned
Company Judge to refuse stay.
We think that a question of general
(1) [.1963] 3 S.C.R. 312.
(2) [1964] 2 S.C.R. 197.
(3) [1965] 1 S.C.R. 678.
(4) [1968] 1 S.C.R. 205.
(5) [1969] 1 S.C.R. 32.
(6) [1972] 1 S.C.R. 405.
14-206SCI/77
B
c
D
E
F
G
H
A
8
c
D
972
SUPREME COUJlT REPORTS
[1977] 2 §,C.'t.
principle arises in this case which has to be clarifiled so that an
interference by this Court under Article 136 of the Constitution, in
order to vindicate a correct principle and to meet the. ends of justice,
is called for.
Thirdly, learned counsel for the respondent submitted that the
order under appeal before us i's not final so that we need not interfere
under Art. 136 of the Constitution for this reason. It is true that,
this Court does not, as a rule, interfere with interlocutory orders.
It is not necessary for us to embark on this occasion on a discussion
of the meaning of a
"final" order.
That is
certainly a
question
fraught with difficulti+es.
It is sufficient for us to observe that our
powers of interference under Art. 136 of the Constitution are not
confined to those in respect of final orders, although finality of an
order is a test which this Court generally applies
in considering
whether it should interfere under Art. 136 of the Constitution with
~t.
We think that we have indicated sufficiently why,
despite the
fact that an order staying proceedings under s. 442(b) of the Act
may not, strictly speaking, be final, yet, a question of general principle
of wide application, as to the circumstances in which (In app:;irently
discretionary power may become annexed with a duty to exercise it
in a particular way, having arisen here, we consider this to be a fit
case for interference under Article' 136 of the Constitution.
.
Consequently, .we allow this appeal and set aside the judgment
and order of the Division Bench and restore that of the learned
Company Judge.
The parties will bear their own costs.
S.R.
Appeal allowed.
•
•
'