Judgment:
Mahinder Narain, A.C.J.
(1) The way we perceive this case it is apparent that the appointment of Provisional Liquidator made by the Bombay High Court in company proceedings, was a conditional appointment. Before the time fixed for performance arrived, the parties had entered into a settlement, the effect of which settlement was that the appointment of the Provisional Liquidator was deferred.
(2) Apart from this, what is significant is the provisions of Section 456 of the Companies Act, which reads as follows:- '456 (1) Where a winding up order has been made or where a provisional liquidator has been appointed, the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled.
(IA)for the purpose of enabling the liquidator or the provisional liquidator, as the case may be, to take into his custody or under his control, any property, effects or actionable claims to which the company is or appears to be entitled, the liquidator or the provisional liquidator, as the case may be, may by writing request the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction such property, effects or actionable claims or any books of account or other documents of the company may be found, to take possession thereof, and the Chief Presidency Magistrate or the District Magistrate may thereupon after such notice as he may think fit to give to any party, take possession of such property, effects, actionable claims, books of account or other documents and deliver possession thereof to the liquidator or the provisional liquidator.
(IB)For the purpose of securing compliance with the provisions of sub-section (IA), the Chief Presidency Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary.
(2) All the property and effects of the company shall be deemed to be in the custody of the Court as from the date of the order for the winding up of the company.'
(3) Under the said provision, the appointment of the Provisional Liquidator could relate only to 'all the properties, effects and actionable claim to which the company is, or appears to be entitled'.
(4) It is not disputed that the boiler in question in this case, which is fired by rice husk, was subject matter of a lease agreement, the lease money in connection whereof, had not been paid. Upon failure to pay the lease money, installments and arrears, the company from which it had been hired, i.e. the Credit Capital Finance Corporation Limited, the respondent herein, could take possession of it as that boiler was owned by them.
(5) In these circumstances it is not possible for us to say that the boiler was something to which the company was entitled to. The boiler was owned by the Credit Capital Finance Corporation Ltd.
(6) In this view of the matter, we are not inclined to entertain this appeal. The same is dismissed.