JUDGMENT
Ashok Bhan, J.
1. Two separate petitions under Section 633 of the Companies Act, 1956 (hereinafter referred to as the Act) were filed. Same were numbered as C.P. No. 49 of 1991 which was filed on behalf of three persons namely Satwant Singh. Harjit Kaur and M/s Pure Drinks and C.P. No. 50 of 1991 was filed by S. Ajit Singh, Managing Director of the said company for claiming the relief mentioned in Section 633 of the Act from prosecution in any proceedings criminally for the commission of any act of negligence, default, breach of duty, misfeasance or breach of trust.
2. Both these petitions were allowed by this Court on 18.2.1991. The detailed judgment was given in C.P. No. 50 of 1991. C.P. No. 49 of 1991 was allowed in terms of the orders passed in C.P.No. 50 of 1991. The operative part of the said judgment reads as under:-
‘Keeping these factors in view, an order in terms of Section 633(2) of the Act is passed and the petitioner is relieved from being prosecuted in any proceedings criminally for the commission of any act of negligence, default, breach of duty, misfeasance or breach of trust. It is however, made clear that if the petitioner commits breach of any of the terms of the orders passed by the Board on 21.10.1991, which have been reproduced in the earlier part of this judgment, then the Registrar of Companies or .any other person empowered/entitled to prosecute the petitioner shall be at liberty to do so. Since exemption has been granted to the petitioner from prosecution, no opinion is being rendered on the point as to whether the petitioner is an “officer who is in default” within the meaning of Section 5 of the Act. It is made clear that the exemption granted by this Court to the petitioner from being prosecuted is with regard to the violations or infringements committed by the petitioner under Section 58-A of the Act only. If the petitioner has committed any violation under any other provisions of the Act or in any other proceedings, civil or criminal, then this order be not deemed to exempt him from prosecution under these provisions of the Act or other proceedings. Accordingly this petition is allowed. No order as to costs.”
3. This petition has been, filed by the Registrar of Companies at Jalandhar having jurisdiction over Himachal Pradesh, Punjab and Chandigarh, under rule 9 of the Companies (Court) Rules, 1959 (hereinafter referred to as the Rules), read with Section 151 C.P.C. for recalling/modification of the order dated 18.9.1992 passed in C.P. No. 49 of 1991 to the extent that the relieving from prosecution in terms of Section 633 of the Act could only be granted to petitioners No. 1 and 2 i.e. Satwant Singh and Harjit Kaur and not to the third petitioner namely M/s Pure Drinks (New Delhi) Limited which is a company and not an officer of the company.
4. Notice in this petition was issued in response to which reply has been filed. A preliminary objection has been taken that the Court had passed the order way back in September 1992 and the present petition was filed on 1.3.1993 and as such the order passed by this Court has become final as the same had not been challenged in appeal. This being the state of affairs, this Court could not recall/modify its own order. On merits, it was stated that the Court had passed the order being fully conscious of the fact that the company was being granted exemption in terms of Section 633 of the Act.
5. I have heard the counsel for the parties. In order to appreciate the controversy between the parties, Section 633 of the Act is reproduced below:-
‘633. Power of Court to grant relief in certain cases B (1) If in any proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company, it appears to the Court hearing the case that he is or may be liable in respect of the negligence, default, breach of duty, misfeasance or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused, the Court may relieve him, either wholly or partly, from his liability on such terms as it may think fit:
Provided that in a criminal proceeding under this sub-section, the Court shall have no power to grant relief from any civil liability which may attach to an officer in respect of such negligence, default, breach of duty, misfeasance or breach of trust.
(2) Where any such officer has reason to apprehend that any proceeding will or might be brought against him in respect of any negligence, default, breach of duty, misfeasance or breach of trust, he may apply to the High Court, for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a Court before which a proceeding against officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under sub-section(1).
(3) No court shall grant any relief to any officer under sub-section(1) or sub-section(2) unless it has, by notice served in the manner specified by it, required the Registrar and such other person, if any, as it thinks necessary, to show cause why such relief should not be granted.”
6. A perusal of this clearly shows that it is an officer of the company only who can be exempted from being relieved from being prosecuted in any proceedings for negligence, default, breach of duty, misfeasance or breach of trust and not the company. Officer of the company has been defined in Section 2, Sub-clause (30) of the Act which reads as under:-
“(30)” “Officer” includes any director, managing agent, secretaries and treasures, manager or secretary or any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act, and also includes:
(a) where the managing agent or the secretaries and treasurers is or are a firm, any partner on the firm;
(b) where the managing agent or the secretaries and treasurers is or are a body corporate, any director or manager of the body corporate;
xx xx xx but save in Sections 477, 478, 539, 543, 545, 621, 625 and 633 does not include an auditor."
Company itself does not fall within the definition of an officer of the company could not be exempted from prosecution in terms of Section 633 of the Act. A plain reading of Section 633 of the Act read with Section 2, Sub-clause (30) of the Acts makes it abundantly clear that the statute does not provide for any exemption of the company from being prosecuted in terms of Section 633 of the Act. For this proposition I draw support from a judgment of learned Single Judge of Kerala High Court in Re : Bank of Decaan Limited, AIR 1960 Kerala 15 wherein it was held as under :-.
“Turning next to the application of S.633, I might at the very outset observe that under that section it is only an officer of the company and not the company itself that can be relieved. This petition in so far as it relates to the 12th petitioner company will therefore have to be dismissed, and it is accordingly dismissed.
The fact that the company could not be granted exemption so far as I recollect was not argued before me and that is why the same has not been discussed by me in my order. Since this mistake has been brought to my notice although slightly belatedly (the petition was decided in September 1992 whereas the present petition was filed on 1.3.1993) as the petition was filed after five months of the passing of the order I deem it appropriate to correct my order in exercise of my inherent power under the Act and modify the same to the effect that the exemption granted under Section 633 of the Act shall be available to Satwant Singh and Harjit Kaur petitioners No. 1 and 2 only and not to the third petitioner i.e. M/s Pure Drinks Limited, New Delhi.
7. Before parting with this order, I must notice another fact. Mr. Rajiv Sahni, Advocate, practising in Delhi was appearing on behalf of the respondents along with Mr. Munishwar Puri, Advocate. The case was initially heard by me more than a year back but the same was adjourned at the request of Mr. Rajiv Sahni, Advocate, to enable him to study the case law. Thereafter, Mr. Rajiv Sahni did not put in appearance and the case kept on being adjourned at the request of Mr. Rajiv Sahni as he was not available. On 19.8.1994 Mr. Munishwar Puri, Advocate, put in appearance and sought adjournment on the ground that Mr. Rajiv Sahni, Advocate who had to conduct this case has not come from Delhi being un-well and as such the case was adjourned to 15.9.1994. On the said date, case was again adjourned to 29.9.1994 but in this order it was made clear that if Mr. Rajiv Sahni does not turn up on the next date of hearing then an alternate arrangement be made and no further adjournment will be granted on this account. Thereafter, two more adjournments were given. Today again a request has been made to me by Mr. Munishwar Puri for adjournment as Mr Rajiv Sahni, Advocate, has not come to this place being unwell. This request of Mr. Munishwar Puri was declined as repeatedly the case was adjourned at the behest of Mr. Rajiv Sahni, Advocate and it had been made abundantly clear that further adjournment shall not be granted on the ground of his inability to appear.
8. This petition stands disposed of subject to the modification indicated above. No costs.