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TMI Blog1960 (9) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 is not present in section 32 of our Act cannot create any material difference between section 32 of our Act and section 26 of the English Act. If the principle that a person charged with an offence cannot rely on his own default as an answer to the discharge is correct, as we think it is, and which we do not find Chagla C.J. saying it is not, then that principle would clearly apply when a person is charged with a breach of section 32 of our Act. Appeal allowed. - 93 AND 94 OF 1958 - - - Dated:- 23-9-1960 - S.J. IMAM, A.K. SARKAR AND K.C. DAS GUPTA, JJ. C.K. Daphtary, N.S. Bindra and R.H. Dhebar for the Appellant. S.P. Varma, A.N. Goyal, N.P. Nathwani, S.N. Andley, J.B. Dadachanji, Rameshwar Nath and P.L. Vohra for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court at Bombay with special leave granted by this court. The appeals have been heard together and are both disposed of by this judgment. It appears that respondent No. 7, N.K. Firodia, was discharged by the learned magistrate because it was conceded at the trial that he was not a director of the company at any material time. He has been made a respondent to the present appeals clearly through some misapprehension. The appellant, the State of Bombay, does not and cannot proceed against him. The name of the respondent, Firodia, should, therefore, be struck out from the records of this appeal. Respondent No. 5, Fateh Chand Jhunjhunwala, died while this appeal was pending in this court. The appeal is, therefore, concerned with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the section requires certain things to be done only after the meeting has been held and no question of performing those things arises till the meeting has been held. A contrary view has been taken in England on the corresponding provisions of the English Companies Acts of 1862 and 1908 : see Gibson v. Barton [1875] L.R. 10 Q.B. 329 , Edmonds v. Foster [1875] 45 L.J.M.C. 41 and Park v. Lawton [1911] 1 K.B. 588. It was said in these cases that a person charged with an offence could not rely on his own default as an answer to the charge, and so, if the person charged was responsible for not calling the general meeting, he cannot be heard to say in defence to the charge that the general meeting had not been called. It was also sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and section 76 does not interfere with the operation of section 32. The effect of section 32 must be derived from its terms: the terms cannot have different effects depending on whether there is a provision like section 76 in another part of the Act or not. Without a provision like section 76 a delinquent officer of the company may make section 32 infructuous, and, therefore, as already stated, it must be held that liability under section 32 would be incurred where the officer has wrongly assisted in the meeting not being held. The result cannot be different because of the presence of a provision like section 76. Nor do we think that sub-section (5) of section 32 by imposing a daily fine during the continuance of the default indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequently, a further summons against it was taken out in respect of the same default for further penalties from that day to another later day. It was held that the word "default" implied a wilful and continued neglect to do an act required and that the company could not be liable to a continuing daily fine for an omission which it was impossible to remedy. The report does not set out the arguments nor the judgment and it is not clear on what grounds the decision was given. It appears, however, that Lord Alverstone was one of the judges who decided that case. In Park v. Lawton [1911] 1 K.B. 588 Lord Alverstone himself observed with regard to Dorte's case ( supra ) that there, "there was no question of the defendant being also in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company at the general meeting, three copies thereof shall befiled with the Registrar..." Sub-section (4) of this section provides a penalty for breach of section 134, in terms similar to those contained in sub-section (5) of section 32. If the language of section 134(1) makes any difference as to the principle to be applied in ascertaining whether a breach of it has occurred or not as to which we say nothing in this case then that case can be of no assistance to the respondents. If, however, no such difference can be made, then we think that it was not correctly decided. We observe that Chagla C.J., who delivered the judgment of the court in that case, did not question the correctness of the decision in Park v. Lawton [1911] L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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