TaxTMI 
TaxTMI 
2026 (8) TMI 109
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....iety, through its Karayogam No. 1639 at Vennala, Ernakulam. He stated that the 3rd respondent, Nair Service Society, is a company limited by guarantee, registered under the Travancore Companies Act, 1914. When the Companies Act, 1956 came into force, the Society was deemed to be registered under Section 25 of the said Act. According to the petitioner, the 3rd respondent has been functioning in blatant violation of law by colluding with certain Government Officials. He asserted that the 3rd respondent, company, is denying the basic rights conferred on the members of the company to attend the Annual General Body Meeting of the company, the right to vote and to contest for the post of Director. It is further contended that none of the Directors of the 3rd respondent company has the mandatory Director Identification Number (DIN). 3. On 01.04.2014, the Companies Act, 1956 was repealed and replaced by the new Companies Act, 2013. The petitioner refers to Ext.P2 and asserts that the same is the copy of W.P.(C) No. 598 of 2000 filed by the Nair Service Society under Article 32 of the Constitution of India, wherein they have taken a stand that the Nair Service Society is a Society initia....
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....ed any complaint before respondents 1 and 2, the learned Single Judge dismissed the Writ Petition on that preliminary point itself. 7. In the Writ Appeal, respondents 1 to 4 have entered appearance. 8. The 1st respondent, the Registrar of Companies, has placed on record a counter affidavit contending that the 3rd respondent, Nair Service Society, is a company registered under Section 26 of the Travancore Companies Regulation Act of 1092. After the enactment of the Companies Act, 1956, Nair Service Society was treated as a deemed company under Section 25 of the Act of 1956. It is stated in the affidavit that the regulatory jurisdiction over the company was transferred from the Registrar of Companies to the Office of the Inspector General of Registration, Kerala, Thiruvananthapuram, and it is governed under the Kerala Non-Trading Companies Act, 1961. It is further contended that all the records pertaining to the 3rd respondent company were duly transferred to the 2nd respondent as per Ext.R1(a) letter, dated 16.06.1962. Therefore, the 1st respondent does not have any jurisdiction, authority, or control over the 3rd respondent company. It is further stated in the counter that th....
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....n of the pleading relied on by the appellant, in W.P.(C) No.598 of 2000, is only a typographical/ clerical error. 12. Sri. Yeswanth Shenoy, the learned counsel for the appellant, submitted that the 3rd respondent, Nair Service Society, is a Company limited by guarantee, which is bound to comply with the provisions of the Companies Act, 2013. The objects and the operation of the 3rd respondent Company are not confined to the State of Kerala. 13. The learned counsel further submitted that the 4th respondent has deliberately and wilfully played fraud upon this Court by not disclosing its averments in the Writ Petition filed before the Hon'ble Supreme Court. The learned counsel then pointed out that the Hon'ble Supreme Court of India is a 'Court of Record' and its proceedings and judgments are preserved for perpetual memory and evidence and cannot be questioned in any other court. The 3rd respondent Company cannot deny the basic rights conferred to the members of the Company to attend the Annual General Meeting of the Company, the right to vote, etc. The learned counsel would further submit that respondents 1 and 2 have colluded with the 3rd respondent for violating the provision....
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....on-Trading Companies Act, 1961. It is further contended that all the records pertaining to the 3rd respondent Company were duly transferred to the 2nd respondent as per Ext.R1(a) letter, dated 16.06.1962. It is their specific contention that the 1st respondent does not have any jurisdiction, authority, or control over the 3rd respondent Company. 19. If before the filing of the writ petition, the petitioner had approached the respondents 1 and 2 to initiate action in accordance with the provisions of the Act of 2013, they would have responded that they have no jurisdiction, authority or control over the 3rd respondent. His failure to approach the respondents before filing the Writ Petition seeking action before seeking mandamus is what persuaded the learned Single Judge to decline relief. 20. The argument advanced by the learned counsel centers around the assertion made by the Nair Service Society in their pleading in W.P.(C) No. 598 of 2000 filed before the Apex Court. In Ext.P2 writ petition while describing the brief particulars of the petitioner society it was asserted as under: (a) The petitioner society is an Institution registered under section 26 of the Travan....
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....rovisions in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt including the power to punish for contempt of itself. The Constitution does not define "Court of Record". This expression is well recognised in juridical world. In Jowitt's Dictionary of English Law, "Court of Record" is defined as: "A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority." In Wharton's Law Lexicon, Court of Record is defined as: "Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper sense the King's Courts - and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act of Parliament. These proceedings are not enrolled or recorded." In Words and Phrases (Permanent Edition Vol. 10 page 429) "Court of R....
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....oritative. With all respect to the learned Judge who passed the order in Jamna Das case [ Writ Petitions Nos. 981-82 of 1984] and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. explains the concept of sub silentio at ....
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....on is whether an assertion in a Writ Petition, on which the Apex Court renders no finding, can be treated as binding on all the courts merely in view of Article 129 of the Constitution. We are afraid that in view of the law laid down by the Apex Court above, the said question can only be answered against the appellant. 31. We hold so because, in the instant case, the 3rd respondent Society, in the Writ Petition filed before the Hon'ble Supreme Court as W.P.(C) No. 598 of 2000, specifically pleaded that it was originally registered under Section 26 of the Travancore Companies Act, 1914 and that, upon the coming into force of the Companies Act, 1956, it must be deemed to have been registered under Section 25 of the Companies Act, 1956. However, the question whether a Company is governed by the Companies Act, 1956 or by the Kerala Non-Trading Companies Act is to be determined solely on the basis of the statutory provisions governing the field and not on the basis of admissions, assertions, or pleadings made by the parties. Such a determination necessarily requires an examination of the relevant statutory framework, the aims and objects of the company, the nature and extent of i....
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....isdiction nor any statutory authority or control over the affairs of the 3rd respondent Company. In the face of such a clear stand taken by the statutory authorities, the very foundation on which the Writ Petition has been instituted becomes doubtful. Had the petitioner approached respondents 1 and 2 and ascertained the correct legal and factual position before rushing to invoke the writ jurisdiction of this Court, considerable judicial time, as well as the time and effort of the parties, could have been avoided. 35. As rightly held by the learned Single Judge a salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus as laid down in Saraswati Industrial Syndicate Ltd. v. Union of India [(1974) 2 SCC 630] are as follows: "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory....