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TMI Blog1970 (3) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid back to him, as well as an investigation instituted by the Company Law Board, early in 1963, into the affairs of the company, are mentioned, presumably to show the hostility of L.D. Bhargava to the applicants. I am unable to appreciate the bearing of this background on the merits of the application before me. If the object was to suggest that the Registrar of Companies or the police at Mathura have acted as a result of anything done by L. D. Bhargava, the suggestion is totally unsupported by any assertion which could give rise to that inference. Moreover, an applicant for relief whether under either section 633(1), for which he can only apply to the court in which a proceeding mentioned there has been instituted or is pending, or, under section 633(2), against apprehended proceedings against him, must show his own honesty and reasonableness so as to establish that he "ought fairly to be excused". Motives of other persons or authorities in taking action against him are not really relevant there at all. Certain allegations against the applicants in a complaint made to the Superintendent of Police, Mathura, by means of a registered A. D. letter, by the Registrar of Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hought "that the auditors would sign and give their report as in the past". In other words, although the balance sheet and the auditors' report had not been signed, they were printed as though signed and then passed and then filed before the Registrar presumably with the knowledge that the original documents had not been signed at all by the auditors. It is stated, in paragraph 9 of the application, that, as soon as Gokul Das Bhargava realised his mistake, he immediately informed the auditors and wrote to the Registrar of Companies with his explanation on September 19, 1966. The Registrar then served a notice dated October 14, 1966 (annexure "C" to the applicants' affidavit), asking him to show cause why action should not be taken against officers of the company under section 628 of the Act. On October 31, 1966, the auditors gave their version to the Registrar (annexure "E" to the affidavit in support of the application) showing that, although the company was fully apprised of the reasons for the refusal of the auditors to sign the report, yet, it filed the papers with the Registrar without obtaining the auditors' signatures. On November 12, 1966, G. D. Bhargava gave an explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of trust. (2) Where any such officer has reason to apprehend that any proceeding will or might be brought against him in respect of any negligence, default, breach of duty, misfeasance or breach of trust, he may apply to the High Court for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a court before which a proceeding against that officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under subsection (1). (3) No court shall grant any relief to any officer under sub-section (1) or sub-section (2) unless it has, by notice served in the manner specified by it, required the Registrar and such other person, if any, as it thinks necessary, to show cause why such relief should not be granted." It is submitted on behalf of the Registrar of Companies and the Superintendent of Police, Mathura, that the provisions of section 633 are intended only for technical lapses and defaults but not for deliberate criminal or dishonest acts involving commission of fraud. It is contended that, in the instant case, not merely the provisions of sections 210 to 216 and 219 to 221 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him under the law. Section 633 of the Act is restricted to cases mentioned therein. Even where an alleged lapse or offence falls completely within the scope of section 633(2), the power of this court to interfere is obviously discretionary. The word "shall have power", used with reference to the jurisdiction of this court under section 633(2), only invests this court with the jurisdiction to interfere, but it imposes no obligation upon it to do so. The discretionary power, which has to be exercised on judicially sound grounds, cannot reasonably be exercised at all where it is not possible, as it is not in the case before me, to extricate facts alleged to constitute lapses or offences falling within the purview of section 633 from those relied upon or offences falling outside its scope. There is no doubt that this court has the same power to relieve under section 633(1) as a trial court in a proceeding to which section 633(1) could be applied. This means that the condition precedent to its exercise under both sub-sections of section 633 are the same. It follows that for applying either section 633(1) or section 633(2) three conditions must be satisfied: firstly, the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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