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TMI Blog1966 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... about certified copies and came to learn that nobody having had made any requisition for the drawing up of the order the same was not drawn up and as such certified copies were not ready. The court clerk of Messrs. T. C. Roy and Co. has filed a supporting affidavit in corroboration of the above statement by the applicant. The applicant-company obtained a change of attorney in the meantime and their new solicitor put in a requisition for the drawing up of the order, on August 10, 1966, with the leave of the court. On the same day, the applicant's solicitor took out a notice of motion, inter alia, praying for leave to file the memorandum of appeal without the certified copy of the order, upon the undertaking to file the same as soon as obtained ; for condonation of the delay in submitting the requisition for drawing up of the order; if necessary for extension of the time to file the appeal; for interim injunction and for other reliefs. On behalf of the petitioning creditor it was contended that the appeal was barred by limitation and sufficient cause for not preferring the appeal within the prescribed period of limitation had not been made out. Now, under article 117 ( sic ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation in the Limitation Act. Inspiration for this argument was drawn from rule 27 in Chapter XVI of the Original Side Rules, which reads as follows : "Except as otherwise provided in the rules, or unless otherwise ordered, application shall be made for the drawing up of every decree and order, other than an order directing a person to furnish security, by requisition to the Registrar in writing by the party in whose favour the decree or order was made within three days from the date of the decree or the order, or, in default of his applying within such time, by any party within seven days from the date of the decree or order. In the case of an order directing a person to furnish security such application shall be made by requisition in writing by the party in whose favour the order was made by 2 p.m. of the day following the date of the order, or in default thereof, by the party who is to furnish the security by 4-30 p.m. of the day following the date of the order. If such application for drawing up a decree or order is not made within the time aforesaid, the decree or order shall not be drawn up except under order of the Court or a Judge to be obtained, unless otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant from saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude." In that view their Lordships affirmed the opinion of the High Court that the appeal was time barred. In the case of J . N. Surty s case ( supra ) , explaining the meaning of the word "requisite" in section 12(2) of the Limitation Act, Lord Phillimore. observed : "The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means 'properly required' and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default." Following the law laid down in J . N. Surty s case ( supra ) a Full Bench of this court observed in the case, In the Parijat Debi s case ( supra ); "The appellant is, as of right, entitled to the exclusion of such time as is properly required for the drawing up of the decree or order, assuming that no part of the delay, if any, is due to his default. In other words, if the delay in obtaining a copy is due to the laches of the appellant, he cannot claim, the benefit of this provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formal requisition by a party for the drawing up of the order. Rule 111(1) referred to above is set out below: "(1) The order for winding up shall be drawn up by the Registrar as soon as possible, and, after it is signed and sealed, two certified copies thereof duly sealed shall be sent to the official liquidator. The order shall be in Form No. 52 with such variations as may be necessary." Thus, it was submitted, the entire time consumed in the drawing up of such an order after the making of an application for copy should be excluded under the Explanation to section 12 of the new Limitation Act. The first part of the above argument was sought to be met on behalf of the petitioning creditor by placing reliance on a Bench decision of this court in Additional Collector of Customs v. Best and Co. AIR 1966 Cal. 398 , in which B.C. Mitra J. (H. K. Bose C.J. agreeing with him) held that under section 12 of the Limitation Act, 1963, the time requisite for obtaining a copy of the order is no doubt to be excluded but such exclusion can be allowed if and only if a copy of the same was annexed to the petition for leave to appeal to the Supreme Court. But if, in fact, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that an application for leave to appeal shall be made by a notice of motion before the appellate court and shall be presented in the prescribed form, viz ., Form No. 3. That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application. The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order. But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents. In regard to the first contention the learned counsel for the respondents urged that sub-sections (2) and (3) of section 12 would not apply where it is not necessary to annex a copy of the judgment or order. For, in such a case it is not possible to say that the time taken in obtaining such a copy is time ' requisite ' within the meaning of that expression in sub-section (2) of section 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant fizzles out. The second part of the argument was sought to be met by placing reliance on rule 6 in Part I of the Companies (Court) Rules, 1959, which reads as follows : "Save as provided by the Act or by these rules, the practice and procedure of the Court and the provisions of the Code so far as applicable shall apply to all proceedings under the Act and these Rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these Rules or the practice and procedure of the court." What was contended before us was that, notwithstanding anything contained in rule 111 of the Companies (Court) Rules, 1959, the Registrar shall not draw up an order for winding up unless there was a proper requisition made. This contention merits detailed consideration. Rule 37(1), in Part I of the Companies (Court) Rules, 1959, contains the general provisions that every order, made by a company judge, whether in court or in chamber, shall be drawn up by the Registrar. The said rule reads as follows : "Every order, whether made in court or in Chambers, shall be drawn up by the Registrar, unless in any proceeding or class of proceedings the Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator of the court notice of the order under the seal of the court in duplicate in Form No. 50 or 51, as the case may be, together with a copy of the petition and the affidavit if any filed in support thereof." The question that calls for our decision is whether the provisions of the Act and of the rules are consistent with the practice and procedure that prevail in this court and as such are saved by rule 6 of the Companies (Court) Rules. Now, the practice and procedure that prevail in this court can be ascertained from rule 27 in Chapter XVI, already quoted, providing for requisition for drawing up of the decree or order and rule 71 A, in Appendix 7 of the Original Side Rules, which reads as follows: "When an order for the winding up of a company by the Court has been made: ( i ) The petitioner or his attorney shall forthwith by letter send to the official liquidator notice of the making of the order. ( ii ) In the High Court, a copy of the minutes of the order shall immediately be sent by the principal officer in attendance to the Registrar. The petitioner or his attorney shall forthwith make an application for the drawing up of the order by requisition to the Registrar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the period of limitation. ( iv )The explanation to section 12 of the Limitation Act of 1963, certainly means that the time taken by the court for preparing the decree or order, after an application for copy of the decree or order has been made, shall be excluded. But this exclusion of time does not include in its ambit the period consumed by a party by not putting in the requisition for the drawing up of the order or decree, after the making of an application for a certified copy. In other words, where the decree or order can be prepared without any step being taken by a party, the entire period after the making of an application for copy by him may be excluded in the computation of the period of limitation for an appeal. But where a court cannot prepare a decree or order unless the party takes certain steps, the period unnecessarily consumed by the party in taking that step does not ensure to his benefit and does not count towards the period taken by the court for preparing the decree or order. The time taken by the court in preparing the decree or order means the time taken after the court was moved by the party to prepare the decree or order, where such a move is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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