Law: Evidence Act, (1 of 1872)

Section: 3

Law: Companies Act, (VII of 1913)

Section: 175(2)

Law: Civil Procedure Code (V of 1908)

Section: O.XIX

(a) Affidavit----- -----Maker not cross-examined -Affidavit not legal evidence within meaning of Evidence Act (I of 1872), S. 3 -Civil Procedure Code (V of 1908), O. XIX. Affidavits and counter-affidavits makers of which have not been subjected to cross-examination by the opposite party cannot be accepted as legal evidence as the word is understood to mean in the light of provisions of the Evidence Act. Where on several points assertions made in one affidavit were refuted by the counter-affidavit, and an elaborate and detailed inquiry was required before a final opinion could be formed on disputed points, held, that it was dangerous to hold certain. points as proved or disproved on the affidavits alone at a preliminary stage of the case, although they might afford good ground to form a prima facie view on some of its aspects (b) Companies Act (VII of 1913)----- -----S. 175 (Z)-Provisional Liquidator -Generally not to be appointed unless company is "plainly, commercially and technically insolvent", or, unless it is the wish and in the interest of shareholders or contributories ­Companies Act (VII of 1913), S. 174. Held, that the Courts generally do not appoint provisional liquidators unless the Company is plainly, commercially and technically insolvent. If the Company suspends its business and refuses to pay to its creditors and no doubt whatsoever is left that it must go into liquidation, then it is plainly, commer­cially and technically insolvent, and therefore, the appointment of a provisional liquidator is urgently called for. Such an appointment is also necessary if the directors of the Company themselves demand it or do not oppose it. Again in cases where it is quite apparent that the Directors or the servants of the Company, are tampering with the records or destroying them or are misappropriating the Company's money then it may become necessary in the larger interests of the contribu­tories and the creditors to appoint a provisional liquidator in order to protect the assets of the Company. Such a liquidator may also be appointed if a fair majority, of shareholders passed a genuine resolution that the Company should be wound up or the creditors in spite…

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