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Vulcan Industries (Pvt.) Ltd. and ors. Vs. Registrar of Companies - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 508 of 1970
Judge
Reported in38(1972)CLT242; [1972]42CompCas326(Orissa)
ActsCompanies Act, 1956 - Sections 220, 220(1) and 220(2)
AppellantVulcan Industries (Pvt.) Ltd. and ors.
RespondentRegistrar of Companies
Appellant AdvocateG.G. Das, Adv.
Respondent AdvocateN. Kr. Das, Adv.
Cases ReferredRegistrar of Companies v. Haribansha Misra
Excerpt:
.....the section it becomes manifest that the balance-sheet and the profit and loss account shall be filed with the registrar after they are laid before the company at its annual general meeting as aforesaid......requirements, the defence plea that the statutory obligation did not arise for discharge until the annual general meeting had been held and the balance-sheet and profit and loss account had been laid before it and that, therefore, no offence was committed, is valid.4. the petitioners are a private limited company and three of its directors. this company was incorporated on december 6, 1960, and has its registered office at sambalpur. they were prosecuted under section 220(3) of the companies act on the allegation that the balance-sheet for the financial year ending on march 31, 1968, which should have been placed before the annual general meeting by september 30, 1968, and then within 30 days thereof should have been filed before the registrar has not been so filed and his default in.....
Judgment:

S.K. Ray, J.

1. This case was referred to a Division Bench and so it has come before us.

2. This reference was necessitated on account of different prevailing views on the question involved, one represented by Registrar of Companies v. Haribansha Misra, [1969] 39 Comp. Cas. 990, A.I.R. 1969 Orissa 234 which is based on the analogy of the decision in State of Bombay v. Bandhan Ram Bhandani, [1961] 31 Comp. Cas. 1 ; [1961] 1 S.C.R. 801 ; A.I.R, 1961 S.C. 186 and the other by the decision in Andhra Provincial Potteries Ltd. v. Registrar of Companies, [1969] 39 Comp. Cas. 1000 ; A.I.R. 1970 A.P. 70 following Emperor v. Pioneer Clay and Industrial Works Ltd., A.I.R. 1948 Bom. 357 which, according to the learned referring judge, is in conformity with the language of the relevant provisions of the Companies Act, 1956 (hereinafter referred to as ' the Act'). The Orissa case as well as the Andhra Pradesh case turned on the interpretation of Section 220(1) of the Act and while the former relied on State of Bombay v. Bandhan Ram Bhandani the latter distinguished it on the basis of the difference in language between Sections 32, 76, 131 and 133 of the Companies Act, 1913, as amended by Act 22 of 1936, with the interpretation of which the Supreme Court was dealing and Section 220 of the Act with which it was concerned and held that the decision in Emperor v. Pioneer Clay and Industrial Works Ltd. was not overruled by the Supreme Court, and followed the principle enunciated therein.

3. The short question arising in this case, as arose in Registrar of Companies v. Haribansha Misra is this : Whether, when an accused is prosecuted under Section 220(3) of the Act for non-compliance of Sub-section (1) thereof or in defaulting to carry out its requirements, the defence plea that the statutory obligation did not arise for discharge until the annual general meeting had been held and the balance-sheet and profit and loss account had been laid before it and that, therefore, no offence was committed, is valid.

4. The petitioners are a private limited company and three of its directors. This company was incorporated on December 6, 1960, and has its registered office at Sambalpur. They were prosecuted under Section 220(3) of the Companies Act on the allegation that the balance-sheet for the financial year ending on March 31, 1968, which should have been placed before the annual general meeting by September 30, 1968, and then within 30 days thereof should have been filed before the Registrar has not been so filed and his default in filing the same before the Registrar continued for 114 days. They have thus been convicted under Section 220(3) of the Act, and the petitioner No. 1 has been sentenced to pay a fine of Rs. 100 and petitioners Nos. 2 to 4 have been sentenced to pay a fine of Rs. 50 each, in default to undergo simple imprisonment for one month each.

5.The defence, in this instant case, is that the annual general meeting for the year in question was held on September 26, 1968, but by then the balance-sheet was not ready as the managing director, who is petitioner No. 4, was ill and as such it could not be laid before such meeting. Necessarily, therefore, copies of them could not be filed before the Registrar as being impossible of performance.

6.The Magistrate disbelieved the plea of illness and held that non-filing of the balance-sheet before the Registrar was a wilful default, and non-performance of the condition precedent, namely, laying the balance-sheet and profit and loss account before the annual general meeting could not berelied on by the accused as an answer to the charge, and convicted the accused as aforesaid.

7. The main point raised in this revision which necessitated the reference to a larger Bench is that the offence which is made punishable under Sub-section (3) of Section 220 is the default in filing with the Registrar within thirty days from the date on which the balance-sheet and profit and loss account were laid before the company at its annual general meeting, and, as in this case the balance-sheet and the profit and loss account were never so laid which is the condition precedent to be performed before the obligation to file the same with the Registrar arises, there was, accordingly, no offence committed.

8. The aforesaid contention has been overruled by the lower courts on the basis of a single judge decision of this court in Registrar of Companies v. Haribansha Misra , in which the learned single judge was of opinion that the principle decided in the Supreme Court case, State of Bombay v. Bandhan Ram Bhandani, is fully applicable even though that case dealt with certain sections of the old Companies Act, 1913. It is, therefore, necessary in the beginning to examine the Supreme Court case. It is needless to say that, if the Supreme Court decision becomes applicable by analogy, the present contention must fail and the single judge decision of this court must be held to be rightly decided.

9. The Supreme Court was dealing with Sections 32, 76 and 131 of the Companies Act of 1913 (hereinafter to be referred to as 'the old Act'). Section 32(1) runs as follows :

' Every company having a share capital shall within eighteen monthsfrom its incorporation and thereafter once at least in every year make a listof all persons who, on the day of the first or only ordinary general meeting --in the year, are members of the company, and of all persons who have ceased to be members since the date of the last return or (in the case of the firstreturn) of the incorporation of the company.'

10. Sub-section (2) of that section requires that the list shall contain a summary of various particulars mentioned in it, and Sub-section (3) provides thatthe list and the summary shall be completed within twenty-one days afterthe day of the first or only ordinary general meeting in the year, and thecompany shall file with the Registrar a copy signed by the director or by themanager or the secretary of the company and the summary shall state thefacts as they stood on the day aforesaid. Sub-section (5) provides that if acompany makes default in complying with the requirements of this section 'it shall be liable to penalty specified therein.

11. Section 76(1) of the old Act runs as follows:

'A general meeting of every company shall be held within eighteen months from the date of its incorporation and thereafter once at least in every calendar year and not more than fifteen months after the holding of the last preceding general meeting.'

12. Sub-section (2) thereof provides that if default is made in holding a meeting in accordance with the provisions of this section, the company and every director or manager of the company who knowingly and wilfully defaults shall be liable to a fine not exceeding five hundred rupees. Sub-section (3) provides that if default is made as provided in Sub-section (1), the court may, on the application of any member of the company, call or direct the convening of such a meeting.

13. Section 131(1) of the old Act runs as follows:

' The directors of every company shall at some date not later than eighteen months after the incorporation of the company and subsequently once at least in every calendar year lay before the company in general meeting a balance-sheet and profit and loss account or in the case of a company not trading for profit an income and expenditure account for the period, in the case of the first account since the incorporation of the company and in any other case since the preceding account, made up to a date not earlier than the date of the meeting by more than nine months or in the case of a company carrying on business or having interests outside British India by more than twelve months: Provided that the Registrar may for any special reason extend the period by a period not exceeding three months.'

14. Section 134 of the old Act is quoted hereinbelow so far as it is relevant for the purpose of this case.

Section 134(1): 'After the balance-sheet and profit and loss account, or the income and expenditure account, as the case may be, have been laid before the company at the general meeting three copies thereof signed by the manager or secretary of the company shall be filed with the Registrar at the same time as the copy of the annual list of members and summary prepared in accordance with the requirements of Section 32.

(2) If the general meeting before which a balance-sheet is laid does not adopt the balance-sheet, a statement of that fact and of the reasons therefor shall be annexed to the balance-sheet and to the copies thereof required to be filed with the Registrar......

(4) If a company makes default in complying with the requirements of this section, the company and every officer of the company who knowingly and wilfully authorises or permits the default shall be liable to the like penalty as is provided by Section 32 for a default in complying with the provisions of that section.'

15. The contention on behalf of the directors of the company before the Supreme Court was that there could be no default in complying with the requirements of Section 32 and Section 131 until a general meeting was held as would be evident from the language of the sections. The sections require certain things to be done only after the general meeting was held, and no question for performing those things arises until the meeting has been held.

16. This contention was repelled by application of the doctrine that:

' A person charged with an offence could not rely on his own default as an answer to the charge, and so, if the person charged was responsible for not calling the general meeting he cannot be heard to say in defence to the charge that the general meeting had not been called.'

17. Reliance was placed on some English cases for application of this doctrine. Their Lordships further said that if the accused persons could have called the meeting to carry out the obligations imposed upon them by the sections, they could not avoid those obligations by wilfully omitting to convene the meeting. Their Lordships then considered the terms of Sections 76 and 32 of the old Act and held that even though Section 76 imposes an obligation to hold meeting and attaches a penalty to a failure to perform that obligation, Section 32 envisages an obligation which comprises of two acts, viz., convening a general meeting and preparation of a list of shareholders as on the date of the first or only ordinary general meeting and filing copies of the same with the Registrar together with a certificate. Their Lordships clearly indicated that both these acts are parts of the same obligation imposed by Section 32. Even though a general meeting had not been held under Section 76, to discharge the obligation under Section 32, a meeting is to be held, list of shareholders prepared and the balance-sheet and the profit and loss account are to be laid before it. Holding of a general meeting is a concomitant necessity as part of the obligation imposed upon by Section 32 and Section 131. This is clear from what their Lordships said when dealing with Section 32 :

' In the case of Section 32, it is necessary that the meeting should be held in order that the requirements of that section may be carried out. It is no less necessary to call a meeting for performing the obligations imposed by Section 32, because under Section 76 there is an obligation to call a meeting the breach of which entails an independent penalty. The two sections deal with different matters and Section 76 does not interfere with the operation of Section 32. The effect of Section 32 must be derived from its terms : the terms cannot have different effects depending on whether there is a provision like Section 76 in another part of the Act or not. Without a provision like Section 76 a delinquent officer of the company may make Section 32 infructuous, and, therefore, as already stated, it must be heldthat liability under Section 32 would be incurred where the officer has wrongly assisted in the meeting not being held. The result cannot be differentbecause of the presence of a provision like Section 76.'

18. Dealing with Section 131 their Lordships adopted the same reasons as were set out in regard to Section 32, that means that to discharge the obligation under this section the directors have to call a meeting as an act to be performed incidentally to the discharge of the obligation imposed under this section.

19. What their Lordships of the Supreme Court held was that Sections 32 and 131 of the old Act required performance of two acts, as discharge of the single obligation imposed thereunder, of which one act is dependent upon the other, and in such a case, the defence cannot take shelter under the plea of non-performance of the prior act for the default of the second act, because non-performance of the first act was his own default. In such a case the principle that a person charged with an offence could not rely on his own default became fully applicable.

20. Dealing with the Bombay case in Emperor v. Pioneer Clay and Industrial Works Ltd., which dealt with Section 134 of the old Act the Supreme Court observed that the language of Section 134 was, to a certain extent, different from the language used in Sections 32 and 131, and the decision of the Bombay High Court could be sustained on this difference, but left the question whether the difference in language was such as to make any difference in the application of the principle laid down by the Supreme Court that a person charged with an offence could not rely on his own default, open. They meant thereby that if on a proper construction of the language of the section it cannot be held that the act of holding a meeting is a necessary part and parcel of the express obligation imposed under the section, then non-holding of the meeting would be a valid defence to the charge of default in discharging the obligation. It is worthwhile to note that the decision in Park v. Lawton, which the Supreme Court followed, also supports this view as is apparent from the following passage:

' If it were the case that everything required to be inserted in the list was dependent on the fact of the general meeting having been held, it might perhaps have been contended with some force that it is impossible to calculate a continuing penalty from a day which has never come into existence; but when one sees that Section 26 requires a number of most important matters to be included in the list of members which are entirely independent of the holding of a general meeting, this very much weakens the contention that no list need be compiled if, owing to the failure to hold a general meeting, it is impossible to say what day is the fourteenth day thereafter'.

21. We will now proceed to examine the relevant provisions of the Act in the aforesaid perspective. The relevant portions of Sub-sections (1), (2), and (3) of Section 220 may now be extracted :

'(1) After the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting as aforesaid, there shall be filed with the Registrar within thirty days from the date on which the balance-sheet and the profit and loss account were so laid....

(2) If the annual general meeting of a company before which a balance-sheet is laid as aforesaid does not adopt the balance-sheet, a statement of that fact and of the reasons therefor shall be annexed to the balance-sheet and to the copies thereof required to be filed with the Registrar.

(3) If default is made in complying with the requirements of Sub-sections (1) and (2) the company, and every officer of the company who is in default, shall be liable to the like punishment as is provided by Section 162 for a default in complying with the provisions of Sections 159, 160 or 161.'

22. On a plain reading of the section it becomes manifest that the balance-sheet and the profit and loss account shall be filed with the Registrar after they are laid before the company at its annual general meeting as aforesaid. The expression ' as aforesaid' refers to Section 210 which provides in Sub-section (1) thereof:

' At every annual general meeting of a company held in pursuance of Section 166, the board of directors of the company shall lay before the company-

(a) a balance-sheet as at the end of the period specified in Sub-section (3); and

(b) a profit and loss account for that period.'

23. Default of action contemplated to be taken under Sub-section (1) is made punishable under Sub-section (6) of the section. The annual general meeting referred to in Sub-section (1) is one which must be held in pursuance of Section 166. Section 166 directs that every company shall in each year hold, in addition to any other meetings, a general meeting as its annual general meeting and that not more than fifteen months shall elapse between the dates of one annual general meeting of a company and another. As regards the first annual general meeting the maximum period for holding it is eighteen months from the date of incorporation of the company. Section 168 makes the default in holding the annual general meeting as contemplated under Section 166 penal. Reading Sections 166, 168, 210 and 220 it becomes clear that omission to hold a general meeting, to lay the balance-sheet and the profit and loss account before the company at Us annual general meeting and to file with the Registrar the balance-sheetand the profit and loss account so laid before the company within the time specified in the section constitute, each, a separate offence and are separately punishable. The acts, omissions of which are punishable, are to be performed at different times, by different authorities or different officers. Each act contemplated to be performed under Sections 166, 210 and 220 may be dependent upon the acts of others and omission to perform such acts may be due to circumstances beyond the control of the person who is under statutory obligation to perform the acts. Therefore, defaults are punishable only when they are wilful.

24. Section 220(1) of the Act creates an offence which is made punishable under Sub-section (6) thereof. Being penal in nature, it calls for a strict interpretation. The use of the expression 'after' and reference to Section 210 by use of the words ' as aforesaid' and 'were so laid' and providing a limitation for carrying out a mandate under this section of filing the balance-sheet and the profit and loss account with the Registrar makes the laying of copies of the balance-sheet and the profit and loss account before the general body meeting an essential prerequisite. This section further indicates that the copies of the balance-sheet and profit and loss account which are required to be filed before the Registrar must be of the one which have, in fact, been laid before the annual general meeting, and not of one which would have been laid before the annual general meeting if one such had been convened. Sub-section (2) of the section further requires that if the balance-sheet is not adopted by the annual general meeting, then a statement of that fact and of the reasons therefor shall be annexed to the copy of the balance-sheet which is to be filed with the Registrar. Sub-section (2) obviously cannot be complied with until the annual general meeting has considered the balance-sheet and that means that the filing of the balance-sheet is dependent upon the general meeting considering it and either adopting it or not adopting it. This further clarifies the legislative intent that the pre-requisite of convening the annual general meeting and laying the balance-sheet before it must be performed before the obligation under Section 220(1) arises. Holding of an annual general meeting or laying of the balance-sheet and profit and loss account before it are not necessary acts, performance of which are envisaged as part of the discharge of the obligation under Section 220(1). A comparison of the language of Sections 32 and 131 of the old Act and Section 220(1) of the Act will abundantly substantiate the aforesaid conclusion that filing of copies of balance-sheet and profit and loss account with the Registrar is dependent upon the facts of holding of the annual general meeting, of laying of the profit and loss account and the balance-sheet before it, and of consideration of the same by the annual general meeting either adopting them or not. Nor as an effect derived from the terms of Section 220 of the Act, as construedabove, can it be said that these essential pre-requisites are necessary acts to be performed as incidental to the performance of the express obligation under Section 220(1) of the Act. So long as the default in carrying out the essential pre-requisites continues, even though the petitioners are responsible for those defaults, the day for performance of the obligation under Section 220(1) of the Act does not come into existence and, therefore, no fresh offence can be said to have been committed.

25. We are, for the aforesaid reasons, in complete agreement with the decision of the Andhra Pradesh High Court in the case of Andhra Provincial Potteries Ltd. v Registrar of Companies , where it has been held :

' In our view, these provisions unmistakably indicate, as we said earlier, that the holding of the annual general meeting and the laying before it of the balance-sheet and the profit and loss account is a sine qua non for filing of the copies thereof before the Registrar. If no general body meeting is held, the persons concerned cannot be said to have committed a default in complying with those provisions.'

26. We are also of the opinion that the decision of the Bombay High Court in the case of Emperor v. Pioneer Clay and Industrial Works Ltd. has not been overruled by the Supreme Court in State of Bombay v. Bandhan Ram Bhandani, On the contrary, the Supreme Court has noticed the difference in the language used in Section 32 and Section 134(1) of the old Act, and indicated that the view as was adopted by Chagla C. J. in the Bombay case was a possible one, based on this difference in the language. In view of our conclusion on the interpretation of Section 220(1) of the Act, and of our view that the Supreme Court decision in State of Bombay v: Bandhan Ram Bhandani is no authority for cases arising under Section 220(3), we would hold that the decision of the Single Judge reported in Registrar of Companies v. Haribansha Misra has not been correctly decided.

27. In the result, the conviction of the petitioners under Section 220(3) of the Companies Act, 1956, must be set aside. The petitioners are acquitted and the fines, if paid, shall be refunded.

Patra, J.

28. I agree.


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