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Case Number

32 of 1961

Attorney(S)

K.K.Poulose

Judges

Mr. Justice P.T. Raman Nayar

Acts

s. 7 of the companies act 1900, Corresponding to our s. 75 (4),
sub - section (9) of s. 555. Under clause (a) of the sub - section
s. 633 (2) of the companies act, 1956,
sub - section (1) of s. 555. Meanwhile,
s. 633 of the companies act, 1956
sub - section 9 of s. 555
sub - section (2) of s. 633,
sub - section (1) of s. 633

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Smart Summary

Opinion Summary

Factual and Procedural Background

These proceedings are seven applications for relief brought under s. 633(2) of the Companies Act, 1956. The applicants comprised:

a voluntary liquidator of a banking company;
the official liquidator as liquidator of an ordinary company; and
a court liquidator in charge of the liquidation of five banking companies.

The liability in question arises under sub‑section (9) of s. 555 for breach of sub‑section (1) of s. 555. The unclaimed dividends had in each case been paid into the companies' liquidation accounts, but not within the time prescribed by s. 555(1). The factual positions described were:

In the voluntary liquidation case the money remained in a bank to the credit of the company and earned interest;
In the court liquidator cases the sums were in the public account, and the default consisted essentially of an omission to transfer from one account to another;
In the official liquidator case the money lay to the credit of the company in a dividend account in a bank as required by rules.

It was common ground from the material before the court that none of the liquidators derived any personal benefit from retaining the money or retained it for themselves; the court found the defaults to be inadvertent and without benefit to the liquidators. The Registrar opposed the applications, principally contending that a liquidator is not an "officer of the company" and therefore s. 633 did not apply.

Legal Issues Presented

Whether a liquidator is an "officer of the company" within the meaning of s. 633 of the Companies Act, 1956.
Whether the liabilities imposed by sub‑section (9) of s. 555 (interest on retained amounts, penalty determined by the Registrar, expenses, and disallowance/removal) fall within the scope of relief available under sub‑section (2) of s. 633.
Whether relief under s. 633(2) can be granted to liquidators who have acted honestly and whose default was inadvertent (i.e., whether they acted "reasonably").

Arguments of the Parties

Applicants / Petitioners

The liquidators sought relief under s. 633(2) in respect of liability incurred under s. 555(9) for late payment of unclaimed dividends.
They relied on facts that the monies had been paid into liquidation accounts (albeit late), that they derived no benefit and did not retain the sums personally, and that the defaults were inadvertent — i.e., honest and not resulting from self‑interest.
The petitioners sought the exercise of the court's discretion to relieve them from liability to the extent the liability could be enforced by court proceedings.

Registrar (Respondent)

The Registrar objected that a liquidator is not an "officer of the company" as defined in s. 2(30) and therefore s. 633 could not apply to a liquidator.
The Registrar advanced the position that every default in respect of a statutory duty necessarily shows the person has not acted reasonably, arguing against relief on that basis.
As to the scope of s. 633(2), the Registrar did not press a specific objection that liabilities under s. 555(9) fall outside the scope of s. 633(2) (the court notes no such objection was taken on that ground).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Alexander Thomson Montgomery v. The Registrar of Joint Stock Companies, West Bengal, ILR (1955) 2 Calcutta 439	Referenced regarding relief under the provision corresponding to s. 633(2) and relief from liability corresponding to s. 555(9).	The court observed that in that case relief from liability corresponding to s. 555(9) was granted; but the court rejected an expansive reading of the case as authority for the proposition that every default necessarily means a person has not acted reasonably.
In re Review Publishing Company (Weekly Notes 1893 p. 5)	Held that the liquidator of a company was a "principal officer" for the purposes of a rule requiring verification by a principal officer.	Used to support the ordinary‑meaning view that a liquidator can be regarded as an officer of the company.
In re X Company, Limited, (1907) 2 Ch. D. 92	Proceeding on the footing that a liquidator was an officer of the company subject to penalties under a companies provision corresponding to s. 75(4) (then s. 7 of the 1900 Act).	Relied upon to show historical authority for treating a liquidator as an officer for purposes of penalty provisions, supporting the court's view that a liquidator is an officer within the meaning of s. 633.

Court's Reasoning and Analysis

The court addressed two principal strands of analysis: (A) whether a liquidator is an "officer of the company" for purposes of s. 633; and (B) whether the liabilities under s. 555(9) fall within the scope of relief that can be granted under s. 633(2).

A. Whether a liquidator is an "officer of the company"

The court noted that the statutory definition of "officer" in s. 2(30) is inclusive and does not, by omission, exclude persons who are officers in the ordinary sense.
The court examined various deeming and disclaimer provisions in the Act. It observed that certain sections (e.g., s. 192(7), 485(2) and 501(2)) deem a liquidator to be an officer for specified purposes, but cautioned against concluding from such deeming provisions that a liquidator is excluded as an officer for all other purposes.
Section 493(3) explicitly uses the phrase "every officer of the company (including every liquidator or continuing liquidator) who is in default", which the court treated as clear indication that a liquidator is an officer in the ordinary sense.
The court reconciled the disclaimer in s. 621(3) (which states a liquidator shall not be deemed to be an officer for the meaning of that sub‑section) by observing that such a disclaimer should be limited to the specific provision and not taken to exclude liquidators as officers generally.
The court relied on the ordinary meaning of "officer of the company", the statutory scheme (including s. 457 and ss. 512(a) & (b)), and prior authorities (cited above) to conclude that a liquidator — whether voluntary, official, or court liquidator — is an officer of the company for the purposes of s. 633.
The court expressly rejected a narrow semantic or hyper‑technical argument that the duty under s. 555(1) is not performed "in the capacity" of an officer and so cannot be regarded as an officer's duty for s. 633 purposes.

B. Whether liabilities under s. 555(9) fall within s. 633(2)

The court noted the effect of s. 633(2): the court may relieve an officer "in the same manner and to the same extent as a court before which a proceeding in respect of the default has been initiated could do under sub‑section (1)." Relief under s. 633(2) is therefore limited to matters for which a proceeding could be brought in court and to the extent a court could grant relief.
Examining s. 555(9), the court identified the constituent liabilities:
- (a) liability to pay interest at 12% per annum on retained amounts (the clause does not specify the recipient but the court inferred the interest is payable into the companies' liquidation account);
- (b) liability to pay expenses occasioned by reason of default (no such expenses had arisen in these cases); and
- (c) liability to have remuneration disallowed in whole or part and to be removed from office by the court (a liability that is clearly enforceable in court proceedings).
On clause (c), the court held this is plainly a matter for court proceedings and therefore within the scope of s. 633(2).
On clause (a) (interest) and the liability to pay a penalty determined by the Registrar, the court observed that those clauses declare liabilities but do not create a special, automatic mode of recovery. Recovery would proceed by ordinary court proceedings (or proceedings in the ordinary courts), and therefore such liabilities are matters as to which proceedings could be brought in court. Consequently, relief under s. 633(2) can extend to these liabilities insofar as they are enforceable by court process.
The court rejected the notion that the amending proviso (by Act 65 of 1960) giving the Central Government power to remit interest implied that the court lacked power to grant relief under s. 633(2) where recovery would be effected by court proceedings.

C. Assessment of conduct (honesty and reasonableness)

The court found on the facts that the liquidators acted honestly and that their defaults resulted from inadvertence. The court observed that the Companies Act is large and complex, and that even a reasonably diligent liquidator might commit an oversight of the sort that prejudices nobody and confers no benefit on the liquidator. The court rejected the Registrar's extreme stance that any default in statutory duty necessarily shows lack of reasonable conduct, and stated that such a reading would defeat the object of s. 633.

Holding and Implications

Holding: The court allowed the applications and relieved the petitioners of liability in respect of their defaults in so far as proceedings may be brought in court to enforce the liability.

Implications and direct consequences:

The court concluded that a liquidator is an "officer of the company" within the meaning of s. 633 and is eligible for relief under s. 633(2) where the statutory conditions (honesty and reasonableness) are satisfied.
The court held that liabilities under s. 555(9) — including interest and penalties that would be recovered by court proceedings, and disallowance/removal proceedings — fall within the scope of s. 633(2) relief to the extent they can be enforced by court action; expenses under clause (b) did not arise in these cases.
Costs: the Registrar incurred no costs. Any costs incurred by the petitioners will be borne personally by them and will not be debited to the companies concerned.
No broader novel rule of law was pronounced beyond the application of existing statutory interpretation and identified authorities; the decision operates to relieve these petitioners as described rather than to establish an expansive new precedent beyond the court's reasoning in this matter.

This summary is confined to the content and reasoning expressly contained in the provided opinion. No information beyond the opinion has been added.

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P.C. Pothen Others v. Registrar Of Companies

1. These are applications for relief brought under s. 633 (2) of the companies act, 1956, The first by the voluntary liquidator of a banking company, The last by the official liquidator as liquidator of an ordinary company, And the remaining five by the same person in his capacity as court liquidator in charge of the liquidation of five banking companies. The liability they have incurred and from which they want relief is that in sub - section 9 of s. 555 of the act for breach of subsection (1) of the section.

2. The unclaimed dividends have all been paid by now into the companies liquidation account but not within the time allowed by sub - section (1) of s. 555. Meanwhile, In the case of the voluntary liquidator the money was lying in a bank to the credit of the company concerned earning interest for it, And, In the case of the court liquidator, In the public account so that the default in the case of the court liquidator was merely the omission to transfer the money from one account to another. In the case of the official liquidator, The money was lying to the credit of the company in a dividend account opened in a bank as required by the rules. In none of the cases did the liquidators derive any benefit from the money retained, Or retain it for any time with themselves, So that there can be no question but that they acted honestly. On the question whether they acted reasonably, I am satisfied that their default was due to mere inadvertence it is no doubt a matter for regret that they were not more vigilant in the discharge of their duties, And the default is not the more commendable because they are professional men, Both of them being lawyers. But the companies act is by no means a short or simple enactment. Its provisions are numerous and complicated, And there is so much that a liquidator has to do that i think it is quite possible for a liquidator, Even if he exercises reasonable care, To commit a default like the present through sheer oversight; especially so since it prejudices nobody and results in no benefit to himself. The position taken by the registrar who opposes these applications, That every default in respect of a statutory duty, Whatever be the circumstances of the case, Necessarily means that the person concerned has not acted reasonably, Seems to me very extreme and i do not regard alexander thomson montgomery v. The registrar of joint stock companies, West bengal, Ilr. (1955) 2 calcutta 439, As authority for the proposition. To say so would be to defeat the very object of s. 633. I think these cases are cases where i should, If i could, Excuse the petitioners and leave them with nothing more than the admonition implied in these very proceedings.

3. The registrar has taken the objection that a liquidator is not an officer of the company that is being wound up, And that therefore s. 633 can have no application to him. My attention is drawn to the definition of, "officer" in s. 2 (30) of the act, And it is pointed out that a liquidator finds no mention there. But then the definition is an inclusive definition, So that, If according to the ordinary meaning of the term a liquidator can be regarded as an officer of the company, The definition cannot have the effect of excluding him. My attention is next drawn to s. 192 (7) ,485 (2) and 501 (2) of the act which expressly provide that for certain purposes a liquidator shall be deemed to be an officer of the company. But the argument that this implies that he is not an officer for any other purpose is a kind of argument that has always been viewed with caution. If we turn to s. 493 (3), We find it saying, "every officer of the company (including every liquidator or continuing liquidator) who is in default" which certainly implies that a liquidator is an officer of the company in the ordinary sense of the term. And in s. 621 (3) we find the express disclaimer, "a liquidator of a company shall not be deemed to be an officer of the company within the meaning of sub - section (1) ". If the contention based on the deeming provision in s. 192 (7), 485 (2) and 501 (2) is to be accepted, Then by parity of reasoning, The disclaimer in s. 621 (3) should mean that for all purposes other than that of s. 621 (1), A liquidator is an officer of the company.

4. Construing the term, "officer of a company" in its natural sense, I should think that the liquidator of a company is an officer of the company even if it be that in the case of an official liquidator or a court liquidator he is, At the same time, An officer of the court. A company does not cease to exist when it goes into liquidation. That happens only when it is dissolved. Meanwhile, The person who acts for and on behalf of the company is the liquidator - see s. 457 in the case of a winding up by court and s. 512 (a) and (b) read with s. 457 in the case of voluntary winding up. That a liquidator is an officer can scarcely be doubted, And, That being so, I do not think it would be any violence to language to say that he is an officer of the company.

5. In in re review publishing company (weekly notes 1893 page 5) vaughan williams, J. Held that the liquidator of a company was a principal officer of the company within the meaning of r. 36 of the companies (winding - up) rules, 1890 which requires that every petition presented by a corporation shall be verified by an affidavit of a principal officer thereof. And in in re x company, Limited, (1907) 2 ch. D. 92, Parker, J, Proceeded on the footing that a liquidator was an officer of the company subject to the penalties under s. 7 of the companies act 1900, Corresponding to our s. 75 (4), Neither of which sections has any provision expressly including a liquidator within the term, "officer of the company". The defaults in respect of which the court can grant relief under s. 633 of the companies act, 1956 are defaults which can very well be committed by a liquidator in winding up a company, And in acting for and on its behalf, And i can think of no reason why, If he has acted honestly and reasonably, He should not be entitled to the benefit of the section in the same manner as a director or other officer of the company. Both from the plain meaning of the term, "officer of the company", And from the scope and intendment of s. 633, I am of the view that a liquidator is an officer of the company within the meaning of that section. The argument that even if a liquidator is an officer of the company, The duty imposed on him by s. 555 (1) is not in that capacity and that for the purposes of that provision (including a breach thereof) he cannot be regarded as an officer of the company is a subtlety for which i have little use. Nor am i certain that, In making the payment enjoined by the section, The liquidator is not acting for and on behalf of the company. After all the money is the money of the company although payable to its creditors or contributories.

6. I might perhaps mention that in alexander thomson montgomery v. The registrar of joint stock companies, West bengal, Ilr. (1955) 2 calcutta 439, It was not disputed that the provision of the 1913 act corresponding to the present s. 633 (2) was applicable to a default like the present, And relief from the liability imposed by the provision corresponding to sub - section 9 of s. 555 was granted in that case.

7. A more difficult question is whether the liability under sub - section (9) of s. 555 falls within the scope of sub - section (2) of s. 633, But not objection has been taken by the registrar on the score that it does not. What this court can do under sub - section (2) of s. 633 is to relieve the office in the same manner and to the same extent as a court, Before which a proceeding in respect of the default has been initiated, Could do under sub - section (1). Therefore it follows that relief can be granted under sub - section (2) only in respect of a matter for which a proceeding could be brought in a court. And that, Only to the extent to which the court before which it could be brought could itself grant. Now, The liability in respect of which a court can grant relief under sub - section (1) of s. 633 can only be a liability which that court itself could enforce; the court cannot give the defaulter complete absolution in respect of all liability arising from his default. That much seems to me clear from the language of the sub - section itself, And the proviso newly added by act 65 of 1960 is only declaratory of the law. If the proviso implies that in a civil proceeding the court has power to grant relief from criminal liability, That, I am sure, Was not intended. Let us now see what are the liabilities which a liquidator incurs under sub - section (9) of s. 555. Under clause (a) of the sub - section he incurs the liability of paying interest on the amount retained at 12% per annum. It is not said to whom the interest is to be paid, But, Obviously it is to be paid into the companies liquidation account, For, It is for the retention of money payable into that account that interest is levied. He also incurs the liability to pay such penalty as may be determined by the registrar. Under clause (b) he is liable to pay any expenses occasioned by reason of his default. No such expenses have been incurred in these cases, And hence the liability under this clause does not arise for consideration. Under clause (c) he is liable to have all or such part of his remuneration as the court may think just disallowed, And to be removed from his office by the court; and, So far as the liability under this clause is concerned that is obviously one to be enforced in a proceeding in court and therefore one which clearly falls within the scope of sub - section (2) of s. 633.

8. There only remains the liability under clause (a). Now, So far as payment of interest is concerned what that clause does is to declare the liability of the liquidator to pay interest; it makes no special provision for the enforcement of the liability. It is not as if there is an automatic order for recovery against the liquidator by reason of the clause, And hence it is to be assumed that the liability is to be enforced and recovery effected in the normal course by a proceeding either in the court or in the ordinary courts. That being so, I should think that recovery by any such proceeding would be something falling within the scope of sub - section (2) of s. 633 and in respect of which this court is competent to grant relief. The same remark applies to the liability to pay such penalty as may be determined by the registrar, For, Here again, I have been able to discover no special provision by which the registrar can recover the penalty. Recovery in that case also will have to be by proceedings initiated in court and hence would fall within the scope of sub - section (2) of s. 633. That under the proviso added to clause (a) by the amending act of 1960, The central government is given power to remit the interest payable by the liquidator, Either wholly or in part, Does not in my view imply that this court has not the power to grant relief under sub - section (2) of s. 633 in so far as proceedings may be brought in court to effect recovery.

9. In the result i allow the applications and relieve the petitioners of liability in respect of their defaults in so far as proceedings may be brought in court to enforce the liability.

10. The registrar has incurred no costs in these proceedings, And the costs, If any, Incurred by the petitioners will be borne by them personally and will not be debited to the companies concerned.

P.C. Pothen Others v. Registrar Of Companies

Opinion Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicants / Petitioners

Registrar (Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

A. Whether a liquidator is an "officer of the company"

B. Whether liabilities under s. 555(9) fall within s. 633(2)

C. Assessment of conduct (honesty and reasonableness)

Holding and Implications

P.C. Pothen Others v. Registrar Of Companies

Comments