9911796707
TMI Blog1973 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... up by the Registrar of the court. This summons has been taken out by the applicant/petitioner for condonation of delay in filing certified copy of an order passed by this court on 23rd April, 1971, confirming a resolution for alteration of the memorandum of association of the applicant-company permitting it to expand its objects clause so as to include businesses originally not included in the memorandum of association of the company. The order confirming the resolution was passed on 23rd April, 1971. On 21st August, 1972, the applicant made an application for a certified copy. The order was drawn up and sealed on 29th September, 1972, and the copy thereof was furnished to the applicant on 2nd October, 1972. On the same day the certified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alteration under the section by such period as it thinks fit. Section 19(2) prescribes that if the documents required to be filed with the Registrar under section 18 are not filed within the time allowed under that section, such alteration and the order of the court made under section 17(5) and all proceedings connected therewith shall, at the expiry of such period, become void and inoperative. There is a proviso to section 19(2) which states that the court may, on sufficient cause shown, revise the orders on application made within a further period of one month. Section 6 40A provides for computation of time for filing orders of court and states that except as expressly provided in that behalf elsewhere in the Companies Act, where by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fact that the Companies (Court) Rules, 1959, framed by the Supreme Court are now in force. Rule 37 of these Rules framed by the Supreme Court provides that 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 judge or the Registrar shall direct that the order need not be drawn up. The contention of the applicant is that rule 37 casts a mandatory duty on the Registrar (the term "Registrar" under rule 2(11) includes the prothonotary of this court) to draw up every order whether made in court or in chambers. The applicant contends that the order was so drawn up and settled and sealed by the Registrar on 29th September, 1972. Therefore, the time from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplies to decrees and orders passed in court and casts a duty on the party initiating the proceedings to draw up the decree or order and to lodge the draft in the office within ten days. The order dated 23rd April, 1971 being an order passed in court under rule 286 it should have been the duty of the party to lodge the draft of the order in the office of the prothonotary within 10 days from the date of the order and to apply to him to fix a time to settle the draft. Mr. Mehta contended that it was the duty of the applicant to have followed rule 286 and he being in default, the time taken in drawing up the order should not be excluded. At this stage one may compare the provisions of section 12(2) of the Limitation Act, 1963, with the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raswami J. (as he then was) held that under section 18(1) read with section 640A of the Companies Act, in computing the period of three months within which an application for a copy of the order of the court confirming an alteration of the memorandum has to be made, the time taken for drawing up the order should be excluded. In that case the order confirming the alteration of the memorandum of association of a company was made in January, but the order was drawn up in April and the application for a copy of the order was made in June. The learned judge held that the application was in time. This judgment obviously supports the contention taken by the applicant before me. The other case cited by the applicant is a judgment of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies (Court) Rules, 1959, casts an imperative duty on the Registrar to draw up all orders under the Companies Act whether made in court or in chambers. In view of the above duty cast by the rules framed by the Supreme Court, rules 91 and 286 made by this court, which were in force up to 1959, would no longer apply or cast a duty on the party to draft orders under the Companies Act with the prothonotary and to apply for time to settle the drafts. It would be the duty of the Registrar himself to draw up the orders of the court. Although the dual system prevails on the original side of the Bombay High Court, by virtue of rule 37 of the Companies (Court) Rules, 1959, there is no duty on the litigant or his lawyer either to draw up the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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