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Sugandha Pada Bhattacharjee Vs. Nalini Mohan Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKolkata High Court
Decided On
Case NumberSuit No. 347 of 1959
Judge
Reported inAIR1961Cal377,[1961]31CompCas283(Cal),65CWN110
ActsCompanies Act, 1956 - Section 610(2)
AppellantSugandha Pada Bhattacharjee
RespondentNalini Mohan Mukherjee and ors.
Advocates:Subimal C. Roy, as Amicus Curiae;S. Mukherji, Adv.
Cases ReferredLaliteswar Singh v. Rameshwar Singh
Excerpt:
- .....occurring in section 610(2) of the companies act, 1956. it is open to parties to obtain certified copies. certified copies are admissible evidence. certified copies are of equal validity with the original documents. there may still be cases where the original is required. mr. roy illustrated that where there were allegations or charges of forgery the production of the original might be necessary. if there were any discrepancy between the original and certified copy or copies the production of the original would become necessary. if any signature to the original document was for special cause or reason required to be proved, the original might be necessary. such instances of requirements of the production of the original can be multiplied.6. therefore, mr. roy contended that it was in.....
Judgment:
ORDER

A.N. Ray, J.

1. This application raises a question as to the procedure to be followed in the issue of subpoena on the Registrar of Companies requiring him to produce documents. The summons has been taken out on behalf of the Registrar of Companies, West Bengal for an order that the subpoena dated July 20, 1960 issued be recalled, rescinded and/or set aside, and for a further order that the applicant be exempted from producing any document pursuant to the said subpoena. In the affidavit affirmed by the Registrar of Companies, West Bengal as a ground in support of the application it is stated first, that the Master had or has no jurisdiction or power to issue any subpoena except with the leave of the Court for production of documents under the Companies Act; secondly, it is stated in the affidavit that if subpoenas are issued by the Master inthe usual course and without leave of the Judge the work and records of the office will be upset, and it will also affect the right of the public to inspect the records or to obtain certified copies thereof under Section 610 of the Companies Act.

2. As the question is a matter of procedure I requested Subimal C. Roy, Esqr., to appear as amicus curiae in this matter. I express my gratitude and thanks to Mr. Roy for having assisted the court.

3. Under Chapter VI, Rules 11 and 12 read together it appears that the Master may transact business mentioned in Clause (12) of Rule 11. Clause (12) mentions applications for time to plead, for leave to amend, for discovery and production of documents and generally all applications relating to the conduct of any Suit or matter. On behalf of the plaintiff it was contended that inasmuch as all applications relating to the conduct of any suit would he dealt with by the Master the issue of a subpoena on the Registrar of Companies for the production of documents would fail within the conduct of any suit or matter and the Master was competent to issue the subpoena.

4. Under Section 610 of the Companies Act, 1956 it appears, as Mr. Roy said, that four rights are contemplated there; first, there is the right of any person to inspect any document kept by the Registrar; secondly, any person has the right to require a certificate of incorporation or copy of or extract of any other document etc; thirdly, certified copies are in all legal proceedings admissible in evidence as of equal validity with the original documents; fourthly, Section 610(2) enacts that no process for compelling production of any document kept by the Registrar shall issue from any court except with the leave of the court. The last right, Mr. Roy contends, is not available as of right or as a matter of course.

5. It is well settled since Heydon's case to consider how the law stood when the statute to bo construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief. In the Companies Act, 1913 there was no provision comparable to Sub-section (2) of Section 610 of the Companies Act, 1956. The question, therefore, arises as to why this provision has been enjoined. I agree with Mr, Roy as well as counsel for the Registrar of Companies that it was designed for the purpose of ensuring that the public was not inconvenienced with regard to the right of inspection of documents or with regard to obtaining certified copies of documents. The provision was introduced in 1956 Act in public interest.

5a. Mr. Roy referred to the provisions of the Bankers' Books Evidence Act, 1891, and in particular, Sections 5 and 6 thereof. Under Section 5 of the Bankers' Books Evidence Act no officer of a bank shall in any legal proceeding to which the bank is not a party be compelled to produce any banker's book, the contents of which can be proved under the Act, to appear as a witness, to prove matters, transactions and accounts therein recorded unless by an order of court or a Judge made for a special use. Similarly, under Section 6 of the Bankers' Books Evidence Act on the application of any party to legal proceeding, the court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceeding or may order the bank to prepare and produce within a time to be specified, in the order certified copies of all such entries. Under Section 4 of the Bankers' Books Evidence Act a certified copy shall be admitted as evidence to the same extent as the original entry is by law admissible. Mr. Roy referred to these sections of the Bankers' Books Evidence Act in order to ascertain the meaning to be attributed to the words 'leave of that court' occurring in Section 610(2) of the Companies Act, 1956. It is open to parties to obtain certified copies. Certified copies are admissible evidence. Certified copies are of equal validity with the original documents. There may still be cases where the original is required. Mr. Roy illustrated that where there were allegations or charges of forgery the production of the original might be necessary. If there were any discrepancy between the original and certified copy or copies the production of the original would become necessary. If any signature to the original document was for special cause or reason required to be proved, the original might be necessary. Such instances of requirements of the production of the original can be multiplied.

6. Therefore, Mr. Roy contended that it was in the contemplation of the legislation and it appears to be a harmonious construction of the Statute that the production of the original document under Section 610 of the 1956 Act should be dealt with the leave of the court, or in other words, the Judge taking that particular suit. The reason as to why this provision in the Companies Act was enacted was, to borrow the words of Lindley, L, J. in the case of Parnell v. Wood, 1892 P 137 at p. 139, for the relief of the office of the Registrar of Companies

'to avoid serious inconvenience occasioned to them by their having to produce books which were in constant use in their business, and by having to send, for the purpose of verifying them, a clerk who would otherwise be employed at the time in making entries in those very books.'

Another reason for providing Sub-section (2) of Section 610 is that the public is not denied the rights of inspection and of obtaining certified copies at any time. If certified copies are produced and admitted in evidence at the trial, the original documents may not be needed. Therefore the Judge is the proper authority to determine and order if the original documents are yet required to be produced at the trial.'

7. As far as the Rules of this court are concerned Chapter VI, Rules 11 and 12, in particular, Clause 12 in Rule 11 show that the Master can deal, inter alia, with applications for discovery and production of document and generally applications relating to the conduct of any suit or matter. Mr. Roy contended that since the Companies Act enjoins that no process for the production of any document kept by the Registrar shall issue except with the leave of the court, such an application is not within the scope of Clause 12, Chapter VI, Rule 11. It is not a general application relating to the conduct of any suit or matter inasmuch as the Com-panies Act, 1956 enjoins leave of the court being obtained.

8. Mr. Roy referred to the decision reported in Laliteswar Singh v. Rameshwar Singh, ILR 34 Cal 619 on the observations of Maclean C. J. appearing at p. 626 of the report. That was a case relating to the grant of leave under Clause 12 of the Letters Patent. The question arose as to whether granting of leave was a judicial or ministerial act. It was held that leave had to be granted by a Judge of the court and it was not competent to delegate the function to one of its officers. It was argued in that Case that inasmuch as under Section 18 of the Charter of the Supreme Court the court was a Court of Equity and had full power and authority to administer justice as nearly as might be according to the Rules and proceedings of the Supreme Court of Chancery in Great Britain, the Court was competent to make Rules and delegate the exercise of judicial functions to its officers, as it was suggested was done in England under the Rules of the Supreme Court framed under the Judicature Act. This contention was not accepted as the source of authority under which the Rules of the Supreme Court were framed in England was entirely different. Mr. Roy extracted the proposition from this decision that granting of leave was a judicial act. Mr. Roy laid emphasis on the words 'leave of that court' occurring in Section 610(2) of the Companies Act and in my opinion, rightly contended that such leave was to be obtained from the Judge who would consider whether leave should be granted for the production of the original document.

9. Before I conclude I should state that in this case the subpoena that was issued was extremely vague as it required the Registrar to produce all papers, correspondence, returns and files.

10. I therefore, am of opinion that the subpoena dated July 20, 1960 be set aside. As far as the petitioner's costs are concerned, I am of opinion that the petitioner should pay and bear its own costs. Certified for counsel.


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