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Showing contexts for: Two trustee in Killick Nixon Ltd. And Others vs Dhanraj Mills Pvt. Ltd. And Others on 9 September, 1981Matching Fragments
10. The last of the preliminary objections was directed not so much against the maintainability of the petition but against the maintainable of the judge's summons for interim relief and this objection was raised also by Shri Mehta on behalf of respondent No. 2. The argument was that the proceedings under s. 155 being themselves summary in nature, an application for interim relief in such a proceeding was not maintainable. In this connection, Shri Chagla submitted that the provisions of s. 155 of the Act do not provide for making any such application unlike the provisions of some other sections in the Act such as ss. 338C, 391(6), 403 and 443. He also further referred us to [1918] 2 Ch.D. 324 (CA) Siemens Bros & Co. Ltd. v. Burns, where it is observed that as to the question of registering a portion of the shares in the names of person who are already on the register by transposing the order of their names, it is not a matter which ought to be dealt with on an interlocutory application and the proper course would be to discharge the order on that motion. Relying on these observations, Shri Chagla submitted that in the present case also it was not more than substituting one name for the other and, therefore, the same principles should apply. We are not impressed by this contention. In the first instance, although it is true that s. 155 like the other sections doest not in so many words make a provisions for interlocutory reliefs, it does not and cannot mean that the inherent power to grant interim reliefs is unavailable to the court while exercising the powers to grant under this section. As in any other proceeding, so grant interim relief if they are warranted by the facts and circumstances of the case. All powers which are necessary to effectfully exercise the duty conferred on it will be deemed to be available to the courts, unless expressly barred. The absence of an express provision has never been interpreted to take away such powers of the court which are necessary to do justice between the parties. A look at the express provisions made under ss. 388C, 391(d), 403 and 443 will show that they covers situations where the Legislature itself envisaged that there may arise a need to make interim orders to protect the affairs of the company and interests of the parties and, therefore, it was necessary to clothe the court with express powers and not leave it to their inherent powers. That, however, does not mean that where no such express provision is made by the Legislature, either the Legislature intended to forebear the courts from exercising their otherwise inherent and necessary powers or that the courts were powerless to exercise the same. As regards the decision relied on Shri Chagla and the observations made therein, we fail to understand how the same can hep his connection. The said observations have been made on the peculiar facts of that case. It appears that the question which fell for consideration there was whether the order of the names of the two trustees which stood on the register of membership of company required to be transposed as regards one moiety of their shares at the interlocutory stage of the proceedings and it is while dealing with this question that the court took the view that it was not a matter which ought to be dealt with on an interlocutory application. On the other hand, these observations go to show that some interlocutory reliefs may be granted though not all reliefs. We are, therefore, of the view that it cannot be laid down as rule of law that no application for interlocutory relief in proceedings under s. 155 is maintainable. On the contrary, we take the view that as in all other proceedings, in proper cases, an application for interlocutory relief even under s. 155 is maintainable, notwithstanding its summary nature. The fact that the proceeding is summary may be relevant while considering whether a particular relief claimed in such proceeding should or should not be granted. That, however, is a different proposition.