TMI Blog2011 (1) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... p held as follows : "Upon the applicants not filing the certified copy of the order sanctioning the scheme within a month of the date of receipt thereof, a presumption arose that these applicants had abandoned the same. The applicants could have rebutted the presumption in the present application or in the supplementary affidavit that was permitted to be filed. The applicants have not addressed such matter in either the application and the supplementary affidavit. The time limit fixed by a statute or by statutory rules cannot be flagrantly flouted nor can the court be expected to condone such conduct without any plausible explanation being furnished." 4. Being aggrieved and dissatisfied with the said order this appeal has been filed by the appellants. 5. The facts of the case briefly are as follows : On July 21, 2009, the hon'ble court was pleased to sanction the scheme of amalgamation and directed the appellant to file certified copy thereof with the Registrar of Companies within thirty days. On July 22, 2009, the appellant's advocate-on-record had put in the requisition for obtaining three sets of xerox certified copies of the said order dated July 21, 2009. It is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of receipt a presumption arises that the applicants had abandoned its right to file the order with the Registrar of Companies. The learned judge has not stated under what law such presumption arises. On the other hand, rule 7 of the Companies (Court) Rules, 1959, expressly empowers the court to enlarge the time fixed by an order of court for doing any Act. With this rule, there cannot be a presumption that after expiry of 30 days it is deemed that the applicants have abandoned their right to file the certified copy. 11. The learned judge ought to have considered sections 115 to 117 of the Indian Evidence Act, 1872 before laying down the law that a presumption arises that after 30 days the applicants abandoned their right to file the certified copy of the order with the Registrar of Companies. In law there is no such presumption. 12. He further submitted that the learned judge without in any manner dealing with the explanation given by the appellant for extension of time to file the said order with the Registrar of Companies has brushed aside the same by saying that "no explanation worth its name has been proffered". 13. He further submitted that the hon'ble court fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 19. He also relied upon the decision in the case of Coal Marketing Co. of India (P.) Ltd., In re [1967] 37 Comp. Cas. 720 (Cal.), where in this judgment so far as it deals with rule 7 supports the case of the appellant herein. Only in paragraph 26 which is set out below that rule 7 was dealt with by the court in the judgment (page 729) : "Finally it was submitted by Mr. Ray Chowdhury, learned counsel for the applicants, that under rule 7 of the Companies Rules, the court has power to enlarge or abridge time in any case in which it shall deem fit. In the first place, I do not consider it to be a case at all fit in which I shall enlarge the time. The matter, therefore, ends there. In the second place this power of the court to enlarge or abridge the time is only confined to the time appointed by this rule or fixed by an order of the court for doing any act or taking any proceeding. If the statute and the interpretation of its relevant section show that the court itself has no power to extend the time for holding the annual general meeting, this question does not arise and such an order of the court will then not only be irregular and outside the court's jurisdiction but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power of the court to take the written statement on record although filed beyond the time as provided for. 24. The hon'ble Apex Court also held that the said Order 8, rule 1 is procedural. In the said decision the court observed as follows (page 119 of 17 SCC) : "10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. 11. The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. 12. The procedural law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urport of conditional order is that such orders merely create something like a guarantee or sanction for obedience of the court's order but would not take away the court's jurisdiction to act according to the mandate of the stature or on relevant equitable considerations if the statute does not deny such consideration." 28. The above decisions were followed by a Division Bench of this court in Shethia Mining Manufacturing Corporation Ltd. v. Khas Dharmaband Colliery Co. (P.) Ltd. AIR 1982 Cal 413, with reference to rule 46 of Chapter 38 of the Original Side Rules of this court. 29. The Full Bench of the Madhya Pradesh High Court in Budhulal Kasturchand v. Chhotetlal AIR 1977 MP 1, also dealt with this question while dealing with the scope of section 148 of the Code of Civil Procedure, 1908 and held that so long as the trial court does not record a formal order disposing of the suit, it continues to have the jurisdiction to extend the time granted to a party for performing an act, notwithstanding the previous order with such a default clause. The Full Bench expressed the following view : "In our opinion, the language of section 148 of the Civil Procedure Code is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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