C. Hamsa Koya vs Sakthi Automobiles (P.) Ltd. and another

Srinivasan, J.—This revision petition is directed against the order of the executing court dismissing the execution petition filed by the

petitioner herein on the ground that the bailiff had resubmitted the warrant with an endorsement that there is not such concern as Sakthi

Automobiles P. Ltd. in the address given. The petitioner obtained a decree on April 23, 1981, in O.S. No. 8 of 1980, Sub-Court, Kavarathi,

Laccadives Island. The execution petition was filed in the City Civil Court, Madras as the company address was given as No. 67, Village Road,

Nungambakkam, Madras. The amount sought to be recovered in the execution petition is Rs. 6,872.75. The relief is prayed for under Order 21,

rule 41 , Civil Procedure Code, to orally examine the director of the company for means of satisfying the decree and also to make an affidavit

stating the particulars of the assets of the company. As the notice in the execution petition could not be served because of the endorsement made

by the bailiff that there was no such company in the address given by the petitioner herein, the execution petition was dismissed. It is this order that

is challenged in this civil revision petition.

Pending the revision, the petitioner filed C.M.P. Nos. 5242 of 1987 and 5243 of 1987. The latter is for impleading the Registrar of Companies

as a party to the revision petition. The former is for directions to the Registrar of Companies to take necessary steps u/s 234 of the Companies

Act, so as to enable the petitioner to realize the amount due under the decree. Though C.M.P. No. 5243 of 1987 was ordered by this court on

June 29, 1987, the Registrar did not enter appearance when the application was taken up for final orders despite his being served. This court

passed an order impleading the Registrar and directed issue of fresh notice in the other application for directions. After service of notice, the

Registrar has entered appearance and has filed a counter affidavit wherein it is stated that the application for directions travels beyond the scope of

the revision petition and the directions cannot be granted. It is also stated that, from the records of the first respondent company, it is seen that the

company has filed balance-sheets and annual returns required to be filed, after long delay for which additional fee to the tune of Rs. 8,600 on

various counts was levied and collected under the provisions of section 611(2) of the Companies Act. It is further stated that the Registrar is not

aware of any fraud or cheating on the part of the company. The Registrar has given the registered address of the company as No. 20/1, Taylors

Road, Kilpauk, Madras-600 010, with effect from April 1, 1986. It is stated that there was change in the original address of the company and the

new address was given to the Registrar in Form No. 18 dated September 29, 1989, on January 12, 1990. Hence, it is open to the petitioner to

take steps to execute the decree by giving the correct address of the judgment debtor which is now disclosed by the Registrar as No. 20/1,

Taylors Road, Kilpauk, Madras-600 010.

Learned counsel for the petitioner argued that the first respondent-company has violated the provisions of sections 146 and 147 of the Act and

is, therefore, liable to be prosecuted. under sub-section (1) of section 146, a company shall, as and from the 30th day after the date of its

incorporation or form the date on which it begins to carry on the business, whichever is earlier, have a registered office to which all communications

and notices may be addressed, under sub-section (2), notice of the situation of the registered office and of every change therein shall be given

within thirty days after the date of the incorporation of the company or after the date of the change, and the Registrar shall record the same. It is

only under the said section that the change of address has been notified to the Registrar by the company, though belatedly. It is for the Registrar to

take appropriate proceedings against the company if the provisions of section 146 or section 147 are violated. The provisions for imposing a fine

on the defaulting company or sentence of imprisonment will not enable the petitioner to collect the decree amount from out of the fine amount. The

remedy of the petitioner is only to execute the decree or to apply for winding up of the company under sections 433 to 439 of the Companies Act.

Section 234 of the Companies Act will also not help the petitioner to recover the decree amount from the Registrar. Under that section if any

document required to be submitted to the Registrar by the company under the Act is filed before him and, on perusing the same, if the Registrar is

of the opinion that any information or explanation is necessary with respect to any matter to which such document purports to relate, he may call on

the company by a written order to furnish such information or explanation within such time as he may specify in the order. The section will not

come into play, unless a document which is required to be submitted had been filed before the Registrar and the Registrar after perusing the same

is of the opinion that further explanation or information is necessary. Hence, the petitioner cannot invoke section 234 and pray for a direction from

this court to the Registrar to collect the decree amount on his behalf; nor can he make any claim to the amount levied as fine by the Registrar on the

company, in view of the default committed by the company.

In the circumstances, the only remedy available to the petitioner is to execute the decree by giving the correct address of the company as is now

disclosed by the Registrar or to initiate proceedings for the winding up of the company under the provisions of the Companies Act. With the above

observations, the civil revision petition is dismissed but, in the circumstances, there will be no order as to costs.