1993 (9) TMI 303 - HC - Companies Law

Summary

Issues: Proper service on respondent by affixation; Applicability of Original Side Rules to company court proceedings; Interpretation of Companies (Court) Rules, 1959; Validity of service without witness evidence; Rulings on Companies (Court) Rules and Code of Civil Procedure.

The judgment addresses the issue of proper service on the respondent through affixation, where the process server failed to have a witness present during the affixation at the last known address of the respondent. The court deemed this service improper as it lacked witness evidence, a requirement under the Rules. The appellant argued that the Original Side Rules of the High Court do not apply to company court proceedings, which are governed by the Companies (Court) Rules, 1959, or the Code of Civil Procedure, 1908. The appellant contended that the practice and procedure mentioned in the Companies Rules do not encompass the rules of the High Court's original civil jurisdiction.

The appellant further argued that the Companies (Court) Rules are silent on the requirement of witness evidence for affixation service. In the absence of specific rules, the Code of Civil Procedure can be referenced for guidance. Specifically, the provisions of Order 5, rule 17 of the Code outline the procedure for service by affixation when the defendant cannot be located. The use of the term "if any" in the rule indicates legislative awareness of situations where finding a witness may be challenging, thereby not mandating witness evidence for valid service by affixation.

The court considered precedents from other High Courts and emphasized that the Companies (Court) Rules are directory, not mandatory. Relying on these precedents and the provisions of the Code of Civil Procedure, the court concluded that the Original Side Rules of the High Court do not automatically apply to the company court. The judgment highlighted that the company court can rely on its own rules, the Code of Civil Procedure, or even the High Court Rules for its practice and procedure. In the absence of explicit requirements for witness evidence in the Companies (Court) Rules, the court upheld the validity of service by affixation without witness evidence based on the principles outlined in the Code of Civil Procedure.

In conclusion, the court revised its earlier order deeming the service invalid, stating that service by affixation without witness evidence is valid unless specifically ordered otherwise. The judgment clarified that the company court is not bound by the High Court's original civil jurisdiction rules and can determine its practice and procedure based on its own rules, the Code of Civil Procedure, or the High Court Rules, as applicable.