Sadhwani v. Deepu Sadhwani (Palakidnar. J.J
COURT OF APPEALP. R. P. PERERA. J. &
A. NO. 141/81 (F)
C. NEGOMBO 1898/Spl.
NOVEMBER 02. 1 988.
Company law — Change of Registered office — Procedure for change —Companies. Ordinance S. 91(3)
The obtaining of the previous sanction of.the Registrar of Companies is-the-first step to change the registered office and if he refuses an appeal' can bemade to the. Permanent Secretary. The second step is the passing of. a specialresolution by the company. This should be followed by the notice under S'. 91.within 1 4 days of the passing of the resolution.
When the Registrar accepts the notice it is clear evidence that the first andsecond steps have been taken. The maxim omnia praesurhuntur rite esse acta(ali official acts have been regularly performed) applies and accordingly it mustbe presumed .that the two previous .sieps .of previous sanction and passing ofresolution have been duly taken; ~
Case referred to:
RoyalBritish Bank v. Turguand (1856)6M&B327
APPEAL from judgment of the District Court of Negombo.
Dr. H. W. Jayewardena Q.C. with K. Kanag Iswaran P.C. Harsha Amarasekera andHarsha Cabral for petitioner – appellants.
Respondents absent and dnr.epresenfed..- •
Cur. adv. vultr
December 01. 1 988 .- •
PALAKIDNAR. J. . .
The Petitioner-Appellant's -filed an application under section1 53A, 1 53B. 1 53E and_-1 53F of the. Companies OrdinanceChap. 1.45 C.L.E. as amended, by. 15 of- 19.64 against the 1st-to4th Respondents as Directors of the company named Esquire(Garments) Company..
Sn Lanka Law Reports
11989/ 1 Sn L. R
The learned Trial Judge made an interlocutory order under section377(b) of the Civil Procedure Code on 27-2-1981 — the date onwhich the application was filed.
The Respondent-Respondents filed objections and at the inquirytwo preliminary points were raised by them, viz:
This court has no jurisdiction to entertain the application of the
The provisions of Section 153(F) did. not empower this Court tomake aa interim order exparte and without prior notice to theRespondent to the application.
The learned trial Judge held that the District Court ofNegombo had no jurisdiction to entertain the application. In view ofthis finding he did.not proceed to make any finding on the secondissue raised.
In appeal the order of the learned trial Judge dismissing theapplication on the preliminary issue of jurisdiction was challengedby counsel .for the Appellants: He urged' that the Petitioner-• Appellants had placed material 'before the learned trial Judge toshow that the registered office of the company was in Katunayakewithin the jurisdiction of the District Court of Negombo.
The Memorandum of. Association of the company marked 'X1 ' setout that the registered office of the Company shall be within the■ Distri'ct Court of Colombo.
The F^etitioner-Appellants'urge that the office was changed to itspresent location at Katunayake as set out in document marked 'X1 3'producedat the trial.
Section 5 of .Act No. 15 of 1984 governs the situation wherethere is change of the location of the office outside the jurisdiction, mentioned in the Memorandum of Association.
..the amendment to section 91 of the’’Companies Ordinance'■embOdied“in the amendment referred to set out the new sub-section(3) whereby with the previous sanction of the ■ Registrar of
CASadhwani v. Deepu Sadhwani (Palakidnar, J.j
Companies, a company may, by special resolution change thesituation of its registered office to any district whether or not it isa district specified in the Memorandum of the company as the' district in which such office is to be situated.
, Notice of such phange shall be given in the prescribed form bythe company to the Registrar within 14 days of the date of theresolution. The document marked ‘K13’ is a notice given in theprescribed form within fourteen days of the date of theresolution.,’ .
The authenticity of this notice has not been contested and thedocument itself bears the seal of the Registrar of Companiesdated 21-2-1980.'
The notice quite clearly, states that the-registered office of thecompany is situated at Canada Sri Lanka;. Friendship Road.Investment Promotion Zone, Katunayake from 21-2-1-980, givenby the'Secretaries to the Company.
The contents of the notice have hot been disputed. Thus'thelocation of the.registered office from 20-2-1 980 is Katunayakewithin the District Court of Negombo.
The learned trial Judge has held that there wa's7 no proof of theprevious sanction of the Registrar. Further he has held that therewas no proof that there was.a special resolution to that.effect. .
The obtaining'of the. previous sanction of the Registrar .is thefirst step in the move to change the registered office of thecompany. A refusal can be countered by an appeal to thePermanent Secretary.
The next step after obtaining..the previous sanction is thespecial resolution of the company to change the location of theregistered office!
The resolution can be made by the company only after thesanction whether directly from the Registrar or on appeal fromthe Permanent Secretary on a refusal by the Registrar.
Sri Lanka Law Reports .
[1989J I Sn L R.
The next step is the notice under section 91 withi.n T 4 days ofthe resolution. There has been no objection to this notice that itis belated or that it was irregular in another way.
The notice eari be given only after the first two steps set outabove as required by sub-section (3) of the amended section 91has been taken..
The Registrar's acceptance of such a notice is in our view clearevidence that the first two steps have been taken. There is norequirement in the prescribed form that the. completion of thefirst-two steps must be set out therein. It may even be observedthat no objection was taken that the prescribed form undersection 91 was a .different one. The seal of authenticity was dated20th February. 1 980. The amendment was in the year 1964. Thepresumption of. law that al.l. official acts have been regularly 'performed must be-borne in mind in'considering this aspectbased on thef'Qmnia praesumuntur rite esse acta" vide EvidenceOrdinance section 1 14 illustration (c).•
We were: also referred -to the-.case of Royal British Bank vs.Turquand- P) quoted in', the .Privy-Council Judgment of LordWilberforce reported in 74 N.-L. p. at page 245 wherein the rulethat.persons contracting-with a company and dealing in good■faith may assume that acts, within-its-powers have been properlyand duly performed and,are not bound, to inquire whether acts of•internalmanagementhavebeenregular.-
In ou.r-view-the: learned trial Judge in answering the issue, of-jurisdiction,, wrongly ..rejected-,the document"X1 3' tendered byt-he ' Respondents as inadequate proof Of the change of the•' location of the -company.,He stated that the previous sanctionand the' resolution have not been proved. It was not the'responsibility, of the Respondents to establish the two previoussteps; They. .had. furnished the notice which, is statutorily givenonly after the first two steps have been . taken ■ within thestipulated time of 14 days.thereafter.
,v. Therefore, oQj the mate_rial placed before, us we-hold that.theDistrict Court-, of-Nego.mbo has. jurisdiction to deal with this
Sadhwani v. Deepu Sadhwani (Palakidnar, j.)
application and set aside the order of the learned trial Judge andallow the appeal with costs fixed at Rs. 1050/- and direct thatthe inquiry into the application be proceeded with in the DistrictCourt of Negombo.
P R. p. perera. J. — I agree.
SADHWANI v. DEEPU SADHWANI