1963 (4) TMI 10

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...., Madras. The petition sought "a writ of mandamus or any other appropriate writ ordering the Registrar of Companies, Kerala, to comply with the provisions of section 149(3) of the Companies Act, 1956, in respect of the petitioner company and to issue the certificate of commencement" ; and the quashing of the order of the respondent No. 2 according sanction for the presentation of a petition by the 1st respondent for the winding up of the company. Sub-section (3) of section 149 of the Companies Act, 1956, reads as follows: "149. (3) The Registrar shall, on the filing of a duly verified declaration in accordance with the provisions of sub-section (1) or sub-section (2), as the case may be, and, in the case of a company which is required by ....

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....he appellant admits that what we are dealing with is a company which has issued a prospectus inviting the public to subscribe for its shares, and it must follow that as it is a company which has issued a prospectus inviting the public to subscribe for its shares and not a company which has not issued a prospectus inviting the public to subscribe for its shares-it comes under sub-section (i) of section 149 and not under sub-section (2) of that section. It is not contended that if the company does come under sub-section (1) of section 149 the conditions of that section have been fulfilled or that the Registrar was wrong in refusing to certify that the company is entitled to commence business under sub-section (3) of section 149. The only con....

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....ll have effect subject to the provisions contained in Part III of that Schedule." A bare reading of section 70 shows that there is nothing in that section which transforms by means of legal notion a company which has issued a prospectus into a company which has not issued a prospectus. In other words, compliance with section 70 will not take a company which has issued a prospectus from the ambit of sub-section (1) of section 149 into the ambit of sub-section (2) of that section. Sections 70 and 149 deal with different matters. Section 70 relates to the allotment of shares or debentures. The object of section 140,- in the words of Palmer's commentary to the corresponding section of the English Companies Act, 1948, section 109-is " obviousl....