9911796707
TMI Blog1972 (1) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... Act"). The Orissa case as well as the Andhra Pradesh case turned on the interpretation of section 220(1) of the Act and while the former relied on State of Bombay v. Bandhan Ram Bhandani [1961] 31 Comp. Cas. 1 ; [1961] 1 SCR 801; AIR 1961 SC 186 the latter distinguished it on the basis of the difference in language between sections 32, 76, 131 and 133 of the Companies Act, 1913, as amended by Act 22 of 1936, with the interpretation of which the Supreme Court was dealing and section 220 of the Act with which it was concerned and held that the decision in Emperor v. Pioneer Clay and Industrial Works Ltd. AIR 1948 Bom. 357 was not overruled by the Supreme Court, and followed the principle enunciated therein. The short question arising in this case, as arose in Registrar of Companies v. Haribansha Misra [1969] 39 Comp. Cas. 990 ; AIR 1969 Orissa 234 is this: Whether, when an accused is prosecuted under section 220(3) of the Act for non-compliance of sub-section (1) thereof or in defaulting to carry out its requirements, the defence plea that the statutory obligation did not arise for discharge until the annual general meeting had been held and the balance-sheet and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n overruled by the lower courts on the basis of a single judge decision of this court in Registrar of Companies v. Haribansha Misra [1969] 39 Comp. Cas. 990 ; AIR 1969 Orissa 234 , in which the learned single judge was of opinion that the principle decided in the Supreme Court case, State of Bombay v. Bandhan RamBhandani [1961] 31 Comp. Cas. 1 ; [1961] 1 SCR 801 ; AIR 1961 SC 186 , is fully applicable even though that case dealt with certain sections of the old Companies Act, 1913. It is, therefore, necessary in the beginning to examine the Supreme Court case. It is needless to say that, if the Supreme Court decision becomes applicable by analogy, the present contention must fail and the single judge decision of this court must beheld to be rightly decided. The Supreme Court was dealing with sections 32, 76 and 131 of the Companies Act of 1913 (hereinafter to be referred to as "the old Act"). Section 32(1) runs as follows : "Every company having a share capital shall within eighteen months from its incorporation and thereafter once at least in every year make a list of all persons who, on the day of the first or only ordinary general meeting in the year, are members o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtend the period by a period not exceeding three months." Section 134 of the old Act is quoted hereinbelow so far as it is relevant for the purpose of this case. Section 134(1): "After the balance-sheet and profit and loss account, or the income and expenditure account, as the case may be, have been laid before the company at the general meeting three copies thereof signed by the manager or secretary of the company shall be filed with the Registrar at the same time as the copy of the annual list of members and summary prepared in accordance with the requirements of section 32. (2) If the general meeting before which a balance-sheet is laid does not adopt the balance-sheet, a statement of that fact and of the reasons therefor shall be annexed to the balance-sheet and to the copies thereof required to be filed with the Registrar........... (4) If a company makes default in complying with the requirements of this section, the company and every officer of the company who knowingly and wilfully authorises or permits the default shall be liable to the like; penalty as is provided by section 32 for a default in complying with the provisions of that section." The contention on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions imposed by section 32, because under section 76 there is an obligation to call a meeting the breach of which entails an independent penalty. The two sections deal with different matters 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 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." Dealing with section 131 their Lordships adopted the same reasons as were set out in regard to section 32, that means that to discharge the obligation under this section the directors have to call a meeting as an act to be performed incidentally to the discharge of the obligation imposed under this section. What their Lordships of the Supreme Court held was that sections 32 and 131 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-sections (1), (2), and (3) of section 220 may now be extracted: "(1)After the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting as aforesaid, there shall be filed with the Registrar within thirty days from the date on which the balance-sheet and the profit and loss account were so laid.... (2)If the annual general meeting of a company before which a balance-sheet is laid as aforesaid does not adopt the balance-sheet, a statement of that fact and of the reasons therefor shall be annexed to the balance-sheet and to the copies thereof required to be filed with the Registrar. (3)If default is made in complying with the requirements of sub sections (1) and (2) the company, and every officer of the company who is in default, shall be liable to the like punishment as is provided by section 162 for a default in complying with the provisions of sections 159, 160 or 161." On a plain reading of the section it becomes manifest that the balance-sheet and the profit and loss account shall be filed with the Registrar after they are laid before the company at its annual general meeting as aforesaid. The expression "as aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt with the Registrar makes the laying of copies of the balance-sheet and the profit and loss account before the general body meeting an essential prerequisite. This section further indicates that the copies of the balance-sheet and profit and loss account which are required to be filed before the Registrar must be of the one which have, in fact, been laid before the annual general meeting, and not of one which would have been laid before the annual general meeting if one such had been convened. Sub-section (2) of the section further requires that if the balance-sheet is not adopted by the annual general meeting, then a statement of that fact and of the reasons therefor shall be annexed to the copy of the balance-sheet which is to be filed with the Registrar. Sub-section (2) obviously cannot be complied with until the annual general meeting has considered the balance-sheet and that means that the filing of the balance-sheet is dependent upon the general meeting considering it and either: adopting it or not adopting it. This further clarifies the legislative intent that the pre-requisite of convening the annual general meeting and laying the balance-sheet before it must be performe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
