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Ratanshi Panchan Tank, Mattancherry, CochIn Vs. Registrar of Companies, Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 3026 of 1966
Judge
Reported inAIR1971Ker1
ActsCompanies Act, 1956 - Sections 33, 33(1) and 611; Constitution of India - Article 226
AppellantRatanshi Panchan Tank, Mattancherry, Cochin
RespondentRegistrar of Companies, Kerala and ors.
Appellant Advocate P.K. Kurien,; V. Desikan,; K.A. Nayar and;
Respondent Advocate C. Sankaran Nair, Adv.
DispositionPetition dismissed
Cases Referred and State of Kerala v. Aluminium Industries Ltd.
Excerpt:
.....we have mentioned distinguish this case from cases like sales tax officer v. 2. nor are we satisfied that the petitioner has any case on the merits. the services end when, on being so satisfied, the registrar proceeds to effect the registration, or, on not being so satisfied, be refuses registration......mentioned in schedule x, there shall, subject to the limitations imposed by that schedule, be paid to the registrar the several fees therein specified.'and item 2 of schedule x specifics the fee payable 'for registration of a company whose nominal share capital exceeds rs. 20,000/-'. both the terms, 'in respect of' and, 'for' are terms of wide import and do not in the least countenance the argument advanced on behalf of the petitioner that the fee is payable only on completion of the registration, in other words, after the services for which it is intended to have been rendered. section 33 of the companies act makes it clear that the process of the registration of a company commences with the presentation to the registrar of the papers specified in sub-section (1) thereof and that.....
Judgment:

Raman Nayar, Ag. C.J.

1. The payment of Rs. 9250/- which the petitioner seeks to recall was an entirely voluntary payment. It was made to the 1st respondent, Registrar of Companies for the fee payable under Section 611 of the Companies Act read with item 2 of Schedule X thereof, for the registration of a company which the petitioner and respondents 4 to 9 were promoting. (A small portion, Rs. 240/-, was for some other fee, but since the petitioner does not want that to be treated on a different footing that may be ignored). There was no question of the Registrar using his official authority either then or at any future time for compelling the payment. There was no refusal on his part to perform the services for which the fee was paid. Indeed it was the petitioner who, after the papers had been returned to him after senitiny for the rectification of certain defects, that decided not to proceed with the matter, whether for reasons within or beyond his control is of no consequence. There is no provision in the Companies Act, or in the rules or regulations made thereunder, for the refund of a fee once paid.

Therefore, even assuming that the petitioner has a cause of action for a refund, it can scarcely be said that the Registrar or the 3rd respondent, Central Government, is under a duty to make the refund in a case like the present where, as we shall presently show, the collection was authorised by law and was not made under a mistake -- not every liability of the Government or of a public officer creates a duty compellable by mandamus. All these factors considered, assuming that the petitioner has a right to get back his money, we do not think that the position is any different from a case of money due from a private party, and we doubt whether the mere fact that the money is due from the Government or from a public officer entitles the petitioner to enforce his right by a proceeding like the present purporting to be under Articles 226 and 227 of the Constitution. In any event, in the circumstances of this case we think it would be a proper exercise of our discretion to decline interference in the exercise of our extraordinary jurisdiction, and we think that the features we have mentioned distinguish this case from cases like Sales Tax Officer v. Kanhaiya Lal, AIR 1959 SC 135, Burmah Construction Co. v. State of Orissa, AIR 1962 SC 1320, State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, Aluminium Industries Ltd. v. The Agrl. Income-tax & Rural Sales Tax Officer, 196I Ker LJ 1336 and State of Kerala v. Aluminium Industries Ltd., 1965 Ker LT 517 (SC) in appeal therefrom, cited at the bar where such jurisdiction was exercised.

2. Nor are we satisfied that the petitioner has any case on the merits. Section 611 of the Companies Act says.

'In respect of the several matters mentioned in Schedule X, there shall, subject to the limitations imposed by that Schedule, be paid to the Registrar the several fees therein specified.'

And Item 2 of Schedule X specifics the fee payable 'for registration of a company whose nominal share capital exceeds Rs. 20,000/-'. Both the terms, 'in respect of' and, 'for' are terms of wide import and do not in the least countenance the argument advanced on behalf of the petitioner that the fee is payable only on completion of the registration, in other words, after the services for which it is intended to have been rendered. Section 33 of the Companies Act makes it clear that the process of the registration of a company commences with the presentation to the Registrar of the papers specified in Sub-section (1) thereof and that it ends when the Registrar makes the registration under Sub-section (3), whereupon, Section 34 requires him to grant the certificate of incorporation and the company becomes a body corporate. The services for which the fee is intended begin the moment the Registrar receives the papers and commences scrutiny thereof for the purpose of satisfying himself that 'all the requirements of the Act and the rules thereunder have been complied with in respect of the registration and matters precedent and incidental thereto' and that the company is a company authorised to be registered under the Act. The services end when, on being so satisfied, the Registrar proceeds to effect the registration, or, on not being so satisfied, be refuses registration. Although there would appear to be no express provision as in Section 80 of the Indian Registration Act that, 'all fees for the registration of documents shall be payable on the presentation of such documents', it seems to us obvious that the fee payable for the registration of a company, under Section 611 read with item 2 Schedule X of the Companies Act, is payable on the presentation for registration of the documents specified in Sub-section (1) of Section 33 of that Act. That would only be in keeping with the general scheme by which all statutory fees are invariably made payable before the commencement of the services for which they are intended.

3. The petitioner's case is that he has not been rendered the services for which he paid the fee and that therefore he is entitled to get back the fee. But the Registrar never refused the services; in fact he has already rendered part of the services; and if the services have not been completed it is only because the petitioner does not want them. The Registrar is, and has been, ready to perform the services for which the fee was paid and complete the registration, or, if the company cannot be registered under the provisions of the Act, to refuse registration. Whatever be the rights of a person who pays money under a contract for services, to be rendered but subsequently declines the services, we do not think that, in the absence of a provision to that effect in the statute concerned, a person paying a fee under a statute has the right to pet back the fee because he no longer wants the services lor which the fee was paid. Whether ho would have a cause of action for damages or for compelling the services, if the services are improperly declined, is an altogether different question.

4. We dismiss this petition with costs.


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