9911796707
TMI Blog1994 (11) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company and petitioner No. 2 was the company secretary of the company. The Registrar of Companies, Maharashtra, had issued show-cause notices dated August 27, 1992, under the provisions of section 113 of the Act calling upon the company to show cause as to why prosecution under section 113(2) should not be initiated against them for the default committed by them under section 113(1) of the Act. The alleged default was failure to deliver share certificates lodged for transfer within the prescribed period of two months from the date of lodgement. It must be stated that there is no dispute that the default has been committed. What is prayed in the petition is that the petitioners have acted honestly and without negligence and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it was passed within the prescribed period. However, due to the practice established there has been delay in actual delivery as none of the representatives of the Stock Holding Corporation of India Ltd., came to collect the transferred shares. The petitioners, therefore, have contended that though there has been default in delivering the share certificates within the period prescribed ; each of them has acted honestly and reasonably and having regard to all the circumstances of the case ought fairly to be excused. Although on the basis of the material on record I find some substance in this plea, I am not inclined to consider the same for the reasons which I propose to state hereafter. In the affidavit in reply filed on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmons itself is not lawful. Shri Bharucha, therefore, submits that despite those proceedings in the facts and circumstances of the case the present petition is clearly maintainable and ought to be considered by this court. In support of his contention Shri Bharucha places strong reliance on the judgment of a single judge of the Calcutta High Court in Hindustan Wire and Metal Products, In re [1983] 54 Comp. Cas. 104 . He also places reliance on the judgment by the learned single judge of the Delhi High Court in S.P. Punj v. Registrar of Companies [1991] 71 Comp. Cas. 509 and K.K. Mehra v. Registrar of Companies [1991] 71 Comp. Cas. 669 . In the case of Hindustan Wire and Metal Products [1983] 54 Comp. Cas. 104 , the learned jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the company petition under section 633(2) was maintainable. The other two judgments also similarly take identical views and support the submissions of Shri Bharucha. In the matter of S.P. Punj v. Registrar of Companies [1991] 71 Comp. Cas. 509 (Delhi) after referring to sections 467, 468, 469 and 473 of the Criminal Procedure Code and after referring to the judgments of the Calcutta High Court in Hindustan Wire and Metal Products, In re [1983] 54 Comp. Cas. 104, the learned judge held that section 468 of the Criminal Procedure Code lays down that except as otherwise provided elsewhere in the Code, no court shall take cognisance of the offence in the category specified in sub-section (2) after the expiry of the period of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehend 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 such 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 sub-section (1). Reading the section there is hardly any doubt that the power of the High Court to entertain the petition is only to be exercised when there is mere apprehension that any proceedings will or might be brought against the officer. The moment in fact any proceedings are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf, it may be mentioned that the decision of the learned single judge of the Delhi High Court in the matter of Krishna Prashad v. Registrar of Companies [1978] 48 Comp. Cas. 397 supports this view. It is laid down in the aforesaid decision that if the apprehended proceeding has already commenced then the officer concerned has no other course open but to apply to the relevant court under section 633(1). Similar is the case in the matter of Sahani ( S.S. ) v. Registrar of Companies [1990] 69 Comp. Cas. 556 decided by a single judge of the Punjab and Haryana High Court. For the aforesaid reasons I am not inclined to entertain this Company Petition No. 470 of 1992 and the same, accordingly, stands dismissed. There shall be no orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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