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TMI Blog1975 (9) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... n reliefs concerning the actions of the ex-directors of the company (in liquidation). I have gone through the main company application and find that certain allegations against the ex-directors of the company, which I need not set out in any detail at this stage, have been set out in the application and which has been styled as an application under section 543 of the Companies Act, 1956. There is no doubt that it has been moved not as a company petition but as a company application. Notice of this application was given to the respondents in the following words : "Issue summons in Form No. 121 to the respondents for December 6, 1974". Thereafter, the first respondent was served and appeared for the first time after service on May 29,1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now seek the orders of the court for permission to file a written statement. As he did not file a written statement on May 29, 1975, I do not see that the position was at all altered by his absence on July 23, 1975. So, the question to be decided is whether on May 29, 1975, the first respondent was required by law to file a written statement. I have been taken through the provisions of law and have examined the Companies (Court) Rules, 1959, on the procedure which is to be followed in dealing with applications under sections 542 and 543 of the Companies Act, 1956, and also in respect of other applications under these Rules. The procedure prescribed by the Companies (Court) Rules, 1959, is somewhat different from the procedure prescribed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is now necessary to turn to rule 260 which deals specifically with applications under section 542 or 543 of the Act. This rule states that an application under these sections has to be moved by a judge's summons in Forms Nos. 120 and 121. An examination of Form No. 120 or 121 shows that it does not require the applicant to state the facts which are relied upon. Then, rule 261 shows that after the summoned party has put in appearance, the court can give directions as to the filing of points of claim and points of defence. The relevant forms appertaining to this stage of the proceedings under sections 542 and 543 are respectively Forms Nos. 122 and 123. These forms show that the material facts which are relied upon have to be stated at thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedure to be followed in the case of other company applications which are instituted in the form of a judge's summons. In cases other than applications under sections 542 and 543, the procedure, is somewhat different. Rule 19 deals with the procedure in the case of judge's summons under other sections of the Companies Act This rule provides that a judge's summons in Form No. 2 has to issue. It also states that such a summons shall be supported by an affidavit. Now, turning to Form No. 2, it will be seen that this form also does not make any provision for setting out the facts of claim. Thus, if the respondent was served with a mere summons in Form No. 2, unaccompanied by any other document, he would certainly find it impossible to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This means that in the case of ordinary applications which are accompanied by an affidavit, a written statement should be filed. I may also refer to rule 10 which specifies that the judge has power to allow applications to be tried in a different form. Thus, I am of the view that the procedure can be varied in the judge's discretion, from that which is followed in relation to suits. But, in the absence of any such order, the procedure in the Code relating to suits has to apply. An application under section 542 or 543 is an exceptional case, and because of the special procedure provided, is not to be tried under the Code of Civil Procedure, but under the procedure prescribed under rules 260, 261 and 262. Consequently, no adverse order can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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