9911796707
TMI Blog1994 (10) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... e Registrar of the Companies Maharashtra had issued show cause notices dated 27th August, 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 judgment. 3. 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 facts and circumstances of the case deserve to be excused under the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been delay in actual delivery as none of the representatives of 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. 4. 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. 5. In the affidavit in reply filed on behalf of the Registrar of Companies it is asserted that the Registrar of Companies has already filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case the present petition is clearly maintainable and ought to be considered by this Court. 8. In support of his contention Shri Bharucha places strong reliance on the judgment of a single Judge of the Calcutta High Court reported in (1993) 54 Comp Cas 104 : (1981 Tax LR 2497), Hindustan Wire and Metal Products. He also places reliance on the judgment by the learned single Judge of the Delhi High Court reported in (1991) 71 Comp Cas 509; S.P. Punj v. Registrar of Companies and (1991) 71 Comp Cas 669 K.K. Mehra v. Registrar of Companies. In the case of Hindustan Wire and Metal Products, the learned Judge has observed that in the particular case before him the petition under Section 473 of the Cr.P.C. was filed on 12th June, 1980. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the matter of S.P. Punj, after referring to Sections 467, 468, 469 and 473 of the Cr.P.C. and after referring to the Judgement of the Calcutta High Court in Hindustan Wire and Metal Products, the learned Judge held that Section 468 of the Cr.P.C. lays down that except as otherwise provided elsewhere in the Code no Court shall take cognizance of the offence in the category specified in sub-section 2, after the expiry of the period of limitation. The learned Judge further held that in the facts and circumstances of the case before him unless bar of limitation was lifted by condonation of delay by an order of the Magistrate made under Section 473 of the Cr.P.C. it cannot be said that the cognisance of the offence has been taken on mere fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re which a proceeding against that officer for negligence, default, breach of duty, misfeasance or breach of trust, had been brought under sub-section (1). 12. 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 proceeding will or might be brought against the officer. The moment in fact any proceedings are initiated before the learned Magistrate, it will be the learned Magistrate alone who would be competent to grant the relief under Section 633(1) of the Companies Act, 13. I do not find any force in the submission of Shri Bharucha that in as much as there is a delay in filing the complaint; no lawful cognisance could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned has no other course open but to apply to the relevant court under Section 633(1). Similar is the case in the matter of S.S. Sahani v. Registrar of Companies reported in (1990) 69 Comp Cas 556 decided by a single Judge of Punjab and Haryana High Court. 15. 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 orders as to costs. On the application of Shri Bharucha, the learned counsel for the petitioners, ad interim orders are continued for a period of 4 weeks from today. 16. In view of the order passed in Company petition No. 470 of 1992, Company application No. 470/92 stands disposed of. Petition dismissed. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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