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TMI Blog2012 (6) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... id registered post for issuing summons/notices on such application to those parties who had been served and had remained unrepresented, since any order that may be passed on such application is likely to affect them. Issuance of notice of the application/s by post or otherwise on those respondents, who are already represented and contesting the matter in a pending proceedings would not arise since they are already on record and represented by learned advocates and carrying out such an exercise would lead to prolonging the proceedings and results in delay and this is not the intention of the Legislature. The Registry is directed to comply with these directions henceforth - CO. APPLICATION NO. 616 OF 2006 CO. PETITION NO. 82 OF 2000 - - - Dated:- 21-7-2011 - ARAVIND KUMAR, J. Deepak for the Applicant. Satish and Aravind for the Respondent. JUDGMENT 1. C. A. No. 616 of 2006 is filed on July 3, 2006, under section 543 of the Companies Act, 1956, read with rule 260 of the Companies (Court) Rules, 1959, against respondents Nos. 1 to 9 to declare that the respondents are liable to pay jointly or severally to the official liquidator the amounts specified therein w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt) Rules, 1959 and whether summons will have to be issued afresh to all the respondents/opponents on such application/s though respondent/s being same and having appeared, represented and contesting the proceedings ?" 5. The Companies (Court) Rules, 1959, have been formulated by the Supreme Court of India after consulting the High Courts in exercise of its power under section 643(1) and (2) (then existing) of the Companies Act, 1956 and same reads as under : "643. Power of Supreme Court to make rules. -(1) The Supreme Court, after consulting the High Courts,- ( a ) shall make rules providing for all matters relating to the winding up of companies which, by this Act, are to be prescribed ; and may make rules providing for all such matters as may be prescribed, except those reserved to the Central Government by sub-section (5) of section 503, sub-section (3) of section 550, section 552 and sub-section (3) of section 555 ; and ( b ) may make rules consistent with the Code of Civil Procedure, 1908 (5 of 1908)- ( i ) as to the mode of proceedings to be had for winding up a company in High Courts and in courts subordinate thereto ; ( ii ) for the voluntary winding up of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial liquidator it mandates that all the applications should be accompanied by judge's summons. Said rule reads as under : "11(b). Judge's summons. -All other applications under the Act or under these rules shall be made by a judge's summons, returnable to the Judge sitting in court or in Chambers as hereinafter provided." 7. The form of judge's summons and mode of service is provided under rule 19 and same reads as under : "19. Form of judge's summons and service thereof .-(1) A judge's summons shall be in Form No. 2 and shall, unless otherwise provided by these rules or permitted by the Judge, be supported by an affidavit. (2) The summons, together with a copy of the affidavit, shall be served upon every person against whom an order is sought and such other person as the Judge may direct, in person or by prepaid registered post, or upon his advocate, where he appears by advocate, or in such other manner as the judge may direct. (3) Unless otherwise provided by these rules or by an order of court, a summons which is an interlocutory application in a proceeding, shall be served not less than 4 clear days before the day named in the summons for the hearing thereof, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unless parties to the appeal or petition affected by the application who are represented by advocates have been served with notice of the application by delivering to each of such advocates a copy of the application together with a copy of the supporting affidavit or memorandum of facts and the written acknowledgment over the signature of each such advocate or his registered clerk is taken either by endorsement on the application or otherwise and is filed in the court along with the application. If, however, the applicant's advocate makes an endorsement on the application that such service on advocate was either refused to be accepted or could not be effected in spite of due diligence, the Registrar may direct that the application be numbered and posted. Wherever it is intended to move the application as an emergent application, the copy of the application served on every advocate under this Rule shall contain an endorsement stating that the application is intended to be moved as an emergent application on the day specified in the endorsement." (Emphasis supplied by me) 12. Like wise, under the Karnataka Civil Rules of Practice, 1967 Chapter III, provides for matters relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read and understood since rules made are procedural in nature which are formulated for effective administration of justice. 15. When an application is filed either invoking provisions of the Companies Act or the Companies (Court) Rules, notice of such application has to be taken out on those persons who have been arrayed as respondents. For the said purpose, judge's summons in Form No. 2 is required to be furnished, so that notice of such application is taken out on all those persons who would be affected by any order that may be passed thereon. 16. A perusal of rule 19 of the Companies (Court) Rules, 1959, would go to show that an application should be accompanied by judge's summons. So that it shall be served on all those persons against whom an order is sought to be made. A reading of sub-rule (2) of rule 19 would also go to show that judge's summons together with copy of the affidavit filed by an applicant has to be served upon every person against whom an order is sought and it is to be notified by prepaid registered post or upon his advocate where such person is represented by an advocate or in any other manner. The intention behind the said Rule is to ensure that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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