the State of Bombay v. Bandhan Ram Bhandani and Others

Judgment

s. 46(1) of the Income.tax Act and th~ amount of tax '960 and penalty due from him would be "an arrear" E. M. Muthappa within s. 46(2). Chettiar We therefore hold that the proceedings for the recovery of the Excess Profits Tax could properly be The Income-tax taken and that the order of the High Court dismissing .officer. s_pccial the appellant's petition for the issue of a writ ofCmle, c_oimbatore prohibition was correct. Ayyanga• J. The appeal fails and is dismissed with costs. The petition is also dismissed but as these two have been heard together there will be no order as to costs in the petition. Both the Appeal and the Petition dismissed. THE STATE OF BOMBAY BANDHAN RAM BHANDANI AND OTHERS. (JAFER IMAM, l'.\.. K. SARKAR and K. c. DAS GUPTA, JJ.) Company-General meeting not called wilfully-Whether it can be a defence-Indian Companies Act, I9I3 (VII of r9r3). as amended by Companies Act, I9J6 (22 of I9J6), ss. 5, 32(5), IJI and I33(3).

The respondents, directors of a company, were prosecuted under ss. 32(5) and 133(3) of the Companies Act, r913, for breaches of ss. 32 and 131 of that Act for having knowingly and wilfully authorised the failure to file the summary of share capital for the year 1953 and being knowingly and wilfully parties to the failure to lay before the company in general meeting the balance sheet and profit and loss account as at March 31, 1953· The respondents contended that there was no default in complying with the requirements of the section as no general meeting had been held in the year concerned. Held-A person charged with an offence cannot rely on his default as an answer to the charge and so, if the respondents were responsible for not calling the general meeting, they cannot be heard to say in defence to the charges brought against them that the general meeting had not been called.

The company and its officers were bound to perform the conditions precedent, if they could do that, in order that they might perform their duty. St/>lember 23. Tlit Slate of Bombay BaPJdhan Ram Bhandani & Others SUPREME COl.iHT J{El'OHTS L1961 J It is no less neces.ary to call a mer ting for performing the obligations imposed by s. 32 because s . .-76 creates an obligation to call a meeting and imposes an ir~Jepciide:nt penalty for breach of that obligation. Liability under s. 32(5) or s. 133(3) would be incurred where the officer has wrongfully assisted in the meeting not being held though he might also be liable at the same time to the pe:1alty under s. 76. Sub-section (5) of s. :i2 b)' imposing a <laily fine during the continuance of the default does not in<l1cate that the default is not committed till a meeting has been held. The default occurs after the expiry of twenty-one days from the day when the meeting should ha \'e been held. lmperator v. The Pio11eer Clay and Ind11stri11l Works Ltd., l.L.R. 1948 Born.

86, Q11w1 v. Nndo11, (1879) 48 Law J. Rep. M.C. 77 and Dork v., 50111/i Africa11 S1tter-Aerrtion Ltd., I 1904) 20 T.L.R. 425, d1st1ngu1shed. Gibso11 v. Barton, (1875) L.K 10 Q.B. 32<), Edmo11ds '" Foster, (1875) 45 Law j. l{ep. :11.C. 41 ancU'urk v. Lmvto11, [1911] 11\.B,. 588, approved. Dorie v. South African S1tper-Aaaiio11 Ltd., (1904) 20 T.L.I« 425, not applicable. CRIMI!IAI, APPELLATE JURISDIC'l'ION: Criminal Appeals Nos. 93 & 94/1958. Appeals by Hpecial leave from t lw judgmrnt aud order dated April 9, 1956, of the furml'r ll<J111bay High Court iu Criminal Appeals .Nos. 41!l and 420 of 1956, arising out of the judgment and ord"r datecl Oetubcr 15, l!J55, of the Chief Prnsidency Mu.gist rat«, Bomhay, in Cases Nos. 370/S a.nd 371/S of 1955. C. K. Daphtary, Solicitor-General of India, N. S. Bindra and R. H. Dhebar, for the appellant (iu hoth the appeals). S. /'. Varma, for respondents i'<us. I, 2 and 3 (In hoth tho appeals). A. N. Goyal, for respondent No. 4 (In both the appeals).

N. P. Nathwani, S!'N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for respondent~ Nos. 5 to 7 (In both the n.ppcals). 1960. September 2J. The Judgment of the Court wae delivered by 1 S.C.R. SUPREME COURT JtEPORTS SARKAR J.-The respondents were Directors of Hirjee Mills Ltd. They were prosecuted before the Chief Presidency Magistrate, Bombay, for two offences under the Companies Act,, 1913, as amended by Act XXII of 1936. The first offence was that they knowingly and wilfully authorised the failure to file the summary of share capital for the year 1953 and thereby became punishable under sub-s. (5) of s. 32 of the Act, for a default in carrying out the requirements of that section. The second offence was that t.hey were knowingly and wilfully parties to the failure to lay before the Company in general meeting the balance sheet and profit and loss account as at March 31, 1953 aud. thereby became punishable under s.

133(3) of the Act .for a default.in complying with the requirements of s. 131. There was a separate trial in respect of each offence; The learned Magistrate fo1md that no general meeting of the company had been held iµ the year concerned. Following lmperator v. The Pioneer Glay and Industrial Works Ltd. (1) he acquitted the respondents, being of the view that no offence under either section could be committed till the general meeting had been held. The learned Magistrate did not go into the merits of the cases on the facts. Appeals by the appellant to the High Court at Bombay from the orders of the learned Magistrate were summarily dismissed. It has preferred the present appeals from the decisions of the High Court ~t Bombay with special leave granted by this Court. The appeals have been heard together and are both disposed of by this judgment. It appears that respondent No. 7, N. K. Firodia, was discharged by the learned Magistrate because it · was conceded at the trial that he was not a director of the Company at any material time.

He has been made a respondent to the present appeals clearly through some misapprehension. The appellant, the State of Bombay, doe8 not and cannot proceed against him. The name of respondent Firodia should there. fore be struck out from the records of this appeal. (•) l.L.R. [•948] Bom. 86. r960 The State of lloniba~,i Bandhan Ram Bhanda11i ~Others Sarkar ] . The Stott tJj JlandJran Ram Rhandani & Otlitrs S!'rkar j. SlJPHE~lE COL'HT REPORTS [l\J61) Respondent Ko. 5, l''a.teh Chand J hunjhunwala, died while this appeal wa.s pnnding in thi8 Court. The appeal is therefore concerned with the rorna.ining five respondents only. Sub-section (l) of o. 32 requires a eompa11y (•nce at least in every year to ma.kc a list of its shareholders as on the dat{l of tho first or only ordinary gen~ral meeting in the year. Sub-~ection (2) reguireR that tho list shall contain a summary specifying various particulars mentioned in it.

Sub.section (3) states that the list and summary sha.11 be completed within twenty. one days after the day of the first or only ordinary genera.I meeting in the year and the company shall forthwith file a copy with the registrar together with a certificate from a director or the manager or the secretary of the company that the list and summary state the facts as they stood on the day aforesaid. Sub-section (5) contains the penal provision, that " If a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding fifty rupees for every da.y during which the default continues, and every officer of the company who knowingly a.nd wilfully authorises or permits the default shall be liable to the like penalt.y ". It is said on behalf of the respondents that there is no default in comp!) ing with the requirements of the section until a general meeting is held.

That, it is said, follows from the language of the section, for it requires certain things a.s at the date of the meeting to be stated in the list and summary and also requires these to be filed within a. cert.a.in time of the meeting. So, it is said, that, the section requires certain things to be done only after the meeting has been held and no question of performing those things a.rises till the meeting bas b1,-en held. A contrary view has been taken in England on the corresponding provisions of the English Companies Acts of 1862 and 1908: see Gibson v. Barton('), Edmonds v. Foster(') and Park v. Lawton('). It was iaid in these cases that a person charged with an (1) (1875) L.R. lo Q.B. 329. (2) (1873) 45 Law J. Rep. M.C. 4t. (3} [191Jj I }.,:.B. 588. 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 beard to say in defence to the charge that the general meeting had not been called.

It was also said that the company and its officers were borind, to perform the condition precedent if they could do that, in order that they might perform their duty. This seems to us to be the correct view to take. If the person charged with the failure to carry out the requirements of the section could have called the meeting, he cannot defeat the provisions of the sec-. tion simply .by not calling the meeting wilfully. It is true that under s. 76 of the Act a general meeting of a company has to be held once at least in every calendar year and if a default is made, the company and every director or the manager of the company who is knowingly and wilfully a party to the default shall be liable to a fine not exceeding five hundred rupees. That however is, in our opinion, no reason for saying that a person charged with a failure to filp the list and summary as required by s. 32 where a meeting had not been held, could only be prosecuted under s. 76 and not under s. 32.

Section 76 imposes au obligation to hold a meeting and attaches a penalty to a failure to perform that obligation. In the case of s. 32 it is necessary that the meetilig 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 obliga. tions imposed by s. 32, because under s. 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 s. 76 does not interfere with the operation of s. 32. The effect of s. 32 must be derived from its terms: the terms cannot have different effects depending on whether there is a provision like s. 76 in another part of the Act or not. Without a provision like s. 76 a delinquent officer of the company may make s. 32 infructuons, and therefore, as already stated, it must be held that liability The State of Bombay Bandhan Ram Bhandani & Others Sarkar ]. Tlst Stole of Bombay Ba"dlsa" Rani'

BAandani 0- Oiiier$ SarAar ]. SCPRE:ME COURT REPORTS [1961] under s. 32 would be incurred where the officer has wrongly assisted in the meeting not being held. The result cannot be different because of the presence of a provision like s. 76. Nor do we think t.ha.t sub-sec. 5 of s. 32 by imposing a daily fine during the continua.nee of the default indicates that the default is not committed till the meeting has been held. Jn order that the default may continue it has no doubt first to occur. In our view, it occurs after the expiry of 2I days from the day when the meeting should have been held within the year. The respondents referred to the case of Queen v. Newton(') where it having been proved that the general meeting was not held, the persons charged with the default were acquitted.

That case however is clearly distinguishable, "hcca..use the decision proceeded on the ground that, the Hummons having alleged in terms that the default was ma.de after the genera.I meeting had been held, it became essentia.1 to prove when the meeting was held a.s a matter of fact, and in the absence of proof the court held that the summons was rightly dismissed ". In this case Cockburn, C. J., expressed some d•Jubts a.bout the correctness of the decision in Edmonds v. Foster (' ). In Park v. Lawton (3) however, Lord Alverstone said that he was unable to share those doubts, and with this view, we agree. We may add that such doubts have not been shared by anyone upto now. Another ease to which we were referred on beha.lf of the respondents was Dorie v. South Afriron Super- .Aeration Ltd.('). There a company was convicted for a failure t-0 file the list and summary in a case where the genera.I meeting had not been held and fined Id and Id per day upto certain day.

Subsequently a further summons against it was ta.ken out in respect of the same default for further penalties from that day to another later day. It was held that the word "default" implied a wilful and continued neglect to do an act required and that the company could not (1) (1879) 48 Law J. Rep. M. C. 77. (3) (1911] 1 K.B. 58A. (1) (1875) 45 Llw J. Rep. M. C. 41. (4) (1904) 20 T.L.R. 415. be lie.hie to a. continuing da.ily fine for an omission which it wa.s impossible to remedy. The report does not set out the arguments nor the judgment a.nd it is not clear on what grounds the decision was given. It appears, however, that Lord Alverstone was one of the Judges who decided that caee. In Park v. Lawton('), Lord Alverstone himself observed with regard tor the Dorte' 8 case that there, " there was no question of the defendant being also in default as to the general meeting, and that decision, therefore, in . no way conflicts with the earlier authorities."

We do not think, therefore, that Dorte's c,ase assists the respondents at a.II. ·It is authority only for the proposition that a continuing daily fine will not be exacted where, owing to no meeting having been held, it is impossible to remedy the default: see Buckley's Company Law (13th Ed.), p. 3H. Turning now to s. 131, we find that it requires the directors of a company, once' at least in every calendar year, to lay before the company ,in .general meeting a balance sheet and profit and lo~s account of the company.; Sub-section (3) of s .. 133 makes the company and every officer of it who is knowingly and wilfully a. party to the default in carrying out the provisions of s. 131, punishable with fine which may extend to five hundred rupees. As in the case of s. 32 and for _the same reasons, here also it is no defence to the charge for breach of s. 131 to say that a meeting was not called. As regards Imperator v. Pioneer C/,ay and Industrial Works Ltd. (2), on which tbA courts belciw held that the respondents must be \:l.i;quitted, we find that it turned on s.

134 of Me Companies Act, 1913. The language of that section is to a. certain extent different from the language used in ss. 32 and 131. Section 134(1) says, "After the bale.nee sheet and -profit and loss account ..... -. ............ have been laid before the compa.ny at the general meeting, three copies thereof ......... shall be filed with the Registrar." Sub.section (4) of this section provides a penalty for breach of s. 134, in terms similar to those contained in sub-sec. (5) of s. 32. If the language of s. 134(1) (1) [1911] 1 K.B. 588. (z) I.LR. [1948] Bom. 86, Ig6o The State of Bo~bay Bandhan Ram Bhandani b Others Sarkar ]. The State of Bombay Dandhan Rani Bha11da11i 6 Others Sarkar ]. Sl1PHE)IE COl'RT REPOitTS [ 1961 J makes any difference as to the principle to he applied in ascertaini111! wheth~r a breach of it bas occurred or 11ot-as to which we say nothing in this ca8e-then that ca.se can be of no assistancp to tho rPspondPnts.

If however no Ruch difference can bP made, then we think that it was not correctly decided. \\\, ohsen·e that Chagla, C. J., who delivered thP judgment of the Court in that case, did not question tlw c1)1Tectness of the decision in Park v. Lawton (1) which be was asked to follow. All that he said with r(·gard to that case was that the scheme and terms of the section on which it turned were different from s. 134 of tLe Com panics Act, 1913. That may or may not he so. There is howe. ver no difference betweens. 26 of the English Cc1m. panics Act, 1908, on which Parl:er's case turned and which apparently through some mistake Chagla, CJ., cited s. 36, ands. :12 of the lndian Companies Act of 1913, except thM tbc English section required the summary to inelud(, a statement in t.hc form of a balanco sheet COlltaining certain particulars mPntioned, whereas our section does not n'quire that.

Sect.ion 131 of our _\ct contains surne provision about the laying of the balanco sheet before the general meeting. Tliis provision was inserted in the Act by the amending Act of 1936. The faet, that. one of tho require. men ts of the Euglish section 26 is not present. iu s. :~2 of our Act caul!ot create an v material d ilfcrence bt·t1reen :<. 32of oPr Aet ands. ·26 of the English Act.. If the principle that a fll'rson charged with an 11fl"encfl cannot rely on his own default as an answer to the charge is corrnct, as we think it is, and which we do not find Chagla, C. J., saying it is not, then that principle would clearly apply when a person is charged with a breach of s. 32 of our Act. We think therefore that the appeal should be allowed. Tho case will now go back to the learned PreHidency :lfagistrato and be tried on the merits according to the law as laid down in this judgment. Appeal allowed. Case remanded. (t) [19u] 1 K.B.;588.