Skip to content


Kathayee Cotton Mills Ltd. Vs. Registrar of Companies and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKerala High Court
Decided On
Case NumberO.P. No. 4652 of 1981
Judge
Reported in[1987]61CompCas420(Ker)
ActsCompany Law Board (Bench) Rules, 1975 - Rules 12, 21, 28, 28(4), 36 and 38; Companies Act, 1956 - Sections 135 and 141
AppellantKathayee Cotton Mills Ltd.
RespondentRegistrar of Companies and ors.
Appellant Advocate Menon and; Pai, Advs.
Respondent Advocate K. Prabhakaran, Adv.
DispositionPetition allowed
Excerpt:
company - authorization - sections 135 and 141 of companies act, 1956 and rules 12, 21, 28, 28 (4), 36 and 38 of company law board (bench) rules, 1975 - advocates required to file memorandum in form 4 to appear before company law board (clb) - petitioner filed papers in registry without filing form 4 - papers rejected - rejection of papers challenged on ground that form 4 necessary to appear before bench not to file papers only - form 4 is authorization to represent client - form 4 required for all purposes whether filing papers or sending by registered post or appearance before clb - petitioner filed papers without authorization - held, rejection valid. - .....rules, 1975 (see exhibits p-1 and p-2). these were returned to the company's advocates by the bench officer, southern region of the office of the company law board bench. the reason for returning the papers is stated in exhibit p-3: '...... as far as the company law board bench is concerned, therules prescribed that memorandum of appearance should be in formno. 4 of appendix i to the company law board (bench) rules, 1975. in accordance with rule 28 and para. 4, the mode of authorisation is by way of board resolution. therefore, you are requested to follow the said procedure. in this connection, your attention is once again invited to this office letter no. 385 of 1981 dated february 24, 1981.' (emphasis* supplied) 2. shri k. a. nayar, appearing for the petitioner, submits that.....
Judgment:

T. Kochu Thommen, J.

1. The petitioner is a company registered under the Companies Act, 1956. Certain papers were filed by the company through its advocates under Section 141 read with Section 135 of the Companies Act, 1956, and rules 36 and 38 of the Company Law Board (Bench) Rules, 1975 (see exhibits P-1 and P-2). These were returned to the company's advocates by the Bench Officer, Southern Region of the office of the Company Law Board Bench. The reason for returning the papers is stated in exhibit P-3:

'...... As far as the Company Law Board Bench is concerned, theRules prescribed that memorandum of appearance should be in FormNo. 4 of Appendix I to the Company Law Board (Bench) Rules, 1975. In accordance with Rule 28 and para. 4, the mode of authorisation is by way of board resolution. Therefore, you are requested to follow the said procedure. In this connection, your attention is once again invited to this office letter No. 385 of 1981 dated February 24, 1981.' (emphasis* supplied)

2. Shri K. A. Nayar, appearing for the petitioner, submits that exhibits P-1 and P-2 were returned for an invalid reason. He contends that Rule 28 is not applicable except for appearance before a Bench. He further contends that Sub-rule (4) of Rule 28 referred to in exhibit P-3 is in any case not applicable to a person represented by counsel.

3. The Company Law Board (Bench) Rules, 1975 (hereinafter referred to as the 'Rules'), provide for the procedure for invoking the jurisdiction of the Company Law Board Bench. Rules 6 to 10 refer to the requirements of an application or petition. Rule 12 says how an application or petition may be presented :

' An application or petition may be presented by the applicant or petitioner in person, or by his authorised representative, at the office of the Bench or may be sent by registered post addressed to the Bench Officer.'

4. This rule thus allows a party or his authorised representative to send the application or petition by registered post addressed to the Bench Officer. Appendix II to the Rules specifies the documents to be annexed to the application. Rule 16 says that the Bench Officer is competent to return an application or petition for removal of defects or for compliance with the relevant rules. Accordingly, it was open to the Bench Officer to return exhibits P-l and P-2 if they were defective. The question is whether they were liable to be returned for the reasons stated in exhibit P-3

5. It is stated in exhibit P-3 that Rule 28(4) had not been complied with. This, I think, is undoubtedly a wrong reason, for, as rightly contended by Shri K. A. Nayar, Rule 28 is not attracted except for appearance before a Bench in accordance with the provisions of Chapter V for the purpose of invoking the jurisdiction of the Bench by means of presenting the application together with the documents. Rule 28 does not have any application. That purpose, as I have stated earlier, is accomplished by compliance with the provisions of Rule 12. There is no case that Rule 12 has not been complied with. The case of the respondents is not that any rule, other than Rule 28, has not been complied with. Their specific case is that Rule 28 has not been complied with.

6. Rule 28 reads:

' 28. Rights of a party to appear before the Bench.--(1) Every partymay appear before a Bench in person or through an authorised representative.

(2) A party may, by writing, authorise an advocate or a chartered accountant or cost and works accountant or a company secretary having prescribed qualification under Section 2(45) of the Act to function as the representative of such party.

(3) Every authorised representative, appearing before a Bench, shall file, in Form No. 4, a memorandum of appearance and shall also file a copy of the authorisation made by the party for such appearance.

(4) Without prejudice to the generality of the foregoing sub-rules,--

(a) a company may appoint a director or secretary of the company to appear on its behalf in a proceeding before the Bench and every person so authorised to appear shall file a memorandum of appearance in accordance with the provisions of Sub-rule (3), together with a copy of the resolution of the board of directors of the company authorising him to so appear;

(b) the Regional Director or the Registrar may appear personally or through an officer, notified by the Board to the Bench Officer, as the authorised representative of the Regional Director or Registrar, as the case may be, and the officer so authorised shall file a memorandum of appearance in accordance with the provisions of Sub-rule (3). '

7. Sub-rule (4) of Rule 28 has, in my judgment, no application except where a director or secretary of the company appears on behalf of the company, as provided under Clause (a) thereof or where the Regional Director or Registrar appears personally or through an officer, as provided in Clause (b) of the sub-rule. The application of Sub-rule (4) is thus strictly limited to the two cases mentioned under Clauses (a) and (b) thereof. On the other hand, where at the time of hearing, the party appears through an authorised representative, Sub-rules (2) and (3) will apply. In that event, the party concerned may by writing authorise an advocate, or a chartered accountant, or costs and works accountant or a company secretary to act as the representative of that party. Such a representative is referred to as an authorised representative, as seen in Sub-rule (3). An authorised representative is defined under Rule 2(d) as 'a person authorised in writing by a party under Sub-rule (2) of Rule 28 to function before a Bench as the representative of such party'. All that this definition implies is that the representative should receive an authorisation in writing and nothing more. Persons who are entitled to be soauthorised are the persons mentioned under Sub-rule (2), namely, the advocate, the accountant and the secretary. Sub-rule (3) refers to Form No. 4 which is required to be filed by every authorised representative. This means that the advocate must, in addition to a copy of the authorisation which he has in writing, file the memorandum of appearance in Form No. 4. This Form is contained in Appendix III to the Rules. It reads:

' Form No. 4

[See Rule 28(3)]

Memorandum of appearance

To

The Bench Officer,

Company Law .................. Bench,

(Proceedings, advertisement and notices, etc.)

Sir,

Please take notice that I am duly authorised to enter appearance, arid do hereby enter appearance, on behalf of ..................... petitioner/opposite party/Registrar/Regional Director ..................... in the above-mentioned petition.

*A copy of the resolution passed by the Board of directors authorising me to enter appearance and to act for every purpose connected with the proceedings for the said party is enclosed, duly signed by me for identification.

*A copy of the notification to the Bench Officer made by the Registrar/ Regional Director under Clause (b) of Rule 28(4) is enclosed.

Yours sincerely, Dated ............... day of .............. =(..................)197.......... +(..................)Enclosure: as aforesaid.

8. Paragraphs 2 and 3 of Form No. 4 can have no application except in the case of persons coming under Sub-rule (4) of Rule 28 and these paragraphs have to be deleted where a party is represented by an advocate or an accountant or a secretary. While the second paragraph of Form No. 4 is related to Sub-rule (4)(a), the third paragraph is related to Sub-rule (4)(b). In the case of an advocate or accountant or a secretary, paragraph 1 alone applies. This means that all that the advocate or the accountantor the secretary has to do is to file a memorandum of appearance signed by himself (and by no one else) in addition to a copy of his authorisation in writing. Where the advocate appears for a party, his authorisation is necessarily his vakalath. There can be no doubt on that (see the Advocates Act, 1961). He requires no other authorisation to represent a party. Since, however, the rules require Form No. 4 to be filed by him, he must in addition to his vakalath or a copy thereof, file the memorandum of appearance.

9. But the memorandum has no application except for the purpose of hearing before the Bench. It is not required for the purpose of filing an application and the documents with the registry of the Bench, namely, the Bench Officer.

10. An application can be presented by an advocate in person or by registered post, provided he does so by indicating that he has been duly authorised to act on behalf of the party. That means that either when he presents the papers in person before the Bench Officer on behalf of the party, or sends them to the officer by registered post, he must enclose his vakalath or a copy thereof (see Rule 28(3)) showing that he has been duly authorised to represent the party. That is all that he needs to do at that stage. The presentation of a memorandum in Form No. 4 does not arise until he appears before the Bench for hearing as contemplated under Rule 21 and other provisions of Chapter V. This is how the rules have to be understood. They are so declared. The position would, however, be different if the advocate or chartered accountant or cost and works accountant or company secretary did not act in his professional capacity, but qua officer of the company, in which event Rule 28(4)(a) and the second paragraph of Form No. 4 would apply.

11. In the circumstances, exhibit P-3 returning the papers sent by the advocates together with their vakalath was unjustified. It is so declared. The second respondent is accordingly directed to accept the papers when they are duly presented in the manner indicated above. The original petition is allowed on the above terms. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //