Judgment :- ORDERS ON C.A.397/2011 1. C.A. 616/2006 is filed on 03.07.2006 under Section 543 of the Companies Act, 1956 read with Rule 260 of the Companies (Court) Rules, 1959 against respondents 1 to 9 to declare that respondents are liable to pay jointly or severally to the Official Liquidator the amounts specified therein with interest thereon. This application has abated against respondents 4 and 5 on account of their death. Recording of evidence before Registrar, CPC has already commenced and on various dates evidence of parties has been recorded and a Court Commissioner was also appointed to record the evidence and at that stage official liquidator has filed C.A.397/2011 seeking incorporation of three prayers by way of amendment to C.A.616/2006 namely to add three (3) prayers. The Registry on such application being filed has raised following objection. “Non filing of memo of service in C.A.397/2011.” 2. Thereafter official liquidator has filed a memo of service in C.A.397/2011 stating that Judges Summons in C.A.397/2011 sent to respondents 2, 3, 7 and 8 are duly served and notice issued to respondents 4 and 5 is returned with a postal shara as “party deceased”. In respect of polices issued to respondents 1, 6 and 9 neither acknowledgment nor undelivered postal cover has been received by official liquidator. Admittedly respondents 4 and 5 have expired and this court by order dated 12.11.2008 and 27.07.2007 respectively has already held that application C.A.616/2006 filed against respondents 4 and 5 has stood abated and matter has been posted for further orders before this court for furnishing acknowledgments for having served Judges summons on other respondents. It is noticed that respondents 1, 6 and 9 are already represented in C.A.616/2006 by learned counsel M/s. Satish and Aravind who have appeared before this court and as well as before Registrar, CPC. 3. It is contended by learned counsel for official liquidator that all applications filed even in a pending proceedings are to be accompanied by Judges summons as required under Rule 11(b) of the Company (Court) Rules, 1959 and contends that notice to respondents of such application will have to be once again issued to the respondents though they have already appeared and contesting the matter through Advocates. 4. 4. Hence, the question that arises for any consideration is: “Whether in a pending proceedings before Company Court if any application filed, does it required to be accompanied by a Judges’ summons as per Rule 11(b) of The Companies (Court) Rules, 1959 and whether summons will have to be issued afresh to all the respondents/opponents on such application/s though respondent/s being same and having appeared, represented and contesting the proceedings?” 5. The Company (Court) Rules, 1959 have been formulated by Supreme Court of India after consulting High Courts in exercise of its power under Section 643(1) & (2) (then existing) of the Companies Act, 1956 and same reads as under: “643. Power of Supreme Court to make rules-(1) The Supreme Court, after consulting the High Courts.- (a) shall make rules providing for all matters relating to the winding up of companies which, by this Act, are to be prescribed, and may make rules providing for all such matters as may be prescribed, except those reserved to the Central Government by sub-section (5) of section 503, sub-section (3) of section 550, section 552 and subsection (3) of section 555; and (b) may make rules consistent with the Code of Civil Procedure, 1908 (5 of 1908),- (i) as to the mode of proceedings to be had for winding up a company in High Courts and in Courts subordinate thereto; (ii) for the voluntary winding up of companies, whether by members or by creditors; (iii) for the holding of meetings of creditors and members in connection with proceedings under section 391; (iv) for giving effect to the provisions of this Act as to the reduction of the capital; and (v) generally for all applications to be made to the Court under the provisions of this Act. (2) Without prejudice to the generality of the foregoing power, the Supreme Court may, by such rules, enable or require all or any of the powers and duties conferred and imposed on the Court by this Act, in respect of the following matters, that it to say:- (a) the holding and conducting of meetings to ascertain the wishes of creditors and contributories; (b) the settling of lists of contributories and the rectifying of the register of members where required, and collecting and applying the assets; (c) the payment, delivery, connivance, surrender or transfer of money, property, books or papers to the liquidator; (d) the making of calls; and (e) the fixing of a time within which debts and claims shall be proved; to be exercised or performed by the Official Liquidator or any other liquidator as an officer of the Court, and subject to the control of the Court: Provided that the liquidator shall not, without the special leave of the Court, rectify the register of members or make any call. (3) Until rules are made by the Supreme Court as aforesaid, all rules made by any High Court on the matters referred to in this section and in force at the commencement of this Act, shall continue to be in force in so far as they are not inconsistent with the provisions of this Act in that High Court and in Courts subordinate thereto. (4) All rules made by the Central Government under sub-section (1) of section 549 and in force immediately before the commencement of the Companies (Amendment) Act, 1960 shall continue in force and be deemed to have been made by the Supreme Court unless and until they are superseded by rules made by the Supreme Court after such commencement.” 6. On a perusal of this provision, it would emerge that such rules are made which are consistent with Code of Civil Procedure, 1908 providing for all matters relating to winding up of Companies and matters incidental thereto. Under rule 11(b) of Company (Court) Rules, 1959 according to learned counsel for official liquidator it mandates that all the applications should be accompanied by Judges summons. Said rule reads as under: “Rule 11(b)-JUDGE’S SUMMONS-All other applications under the Act or under these rules shall be made by a Judge’s summons, returnable to the judge sitting in Court or in Chambers as hereinafter provided”. 7. Said rule reads as under: “Rule 11(b)-JUDGE’S SUMMONS-All other applications under the Act or under these rules shall be made by a Judge’s summons, returnable to the judge sitting in Court or in Chambers as hereinafter provided”. 7. The Form of Judges’ Summons and mode of service is provided under Rule 19 and same reads as under: “19. Form of Judge’s summons and service thereof (1) A Judge’s summons shall be in Form No.2 and shall, unless otherwise provided by these rules or permitted by the Judge, be supported by an affidavit. (2) The summons, together with a copy of the affidavit, shall be served upon every person against whom an order is sought and such other person as the Judge may direct, in person or by pre-paid registered post, or upon his Advocate; where he appears by Advocate, or in such other manner as the Judge may direct. (3) Unless otherwise provided by these rules or by an order of Court, a summons which is an interlocutory application in a proceeding, shall be served not less than 4 clear days before the day named in the summons for the hearing thereof, and where the summons is other than interlocutory, it shall be served not less than fourteen days before the date fixed for the hearing thereof.” (Emphasis supplied by me) 8. These Rules are made to sub-serve administration of justice and it is noticed from Section 643(1) and (2) the intention of Parliament is to ensure that these rules are consistent with Code of Civil Procedure, 1908 which would mean that such rules would be in addition to the rules prescribed under Code of Civil Procedure and not in substitution thereof. Under Section 122 of Code of Civil Procedure, High Courts are empowered to make rules regulating their own procedure and the procedure of the civil courts, subject to their superintendence and may by such rules annul or add to all or any of the rules in the First Schedule. The legislative competence of the High Court to make such rules has been upheld by Hon’ble Apex Court in the case of: (1) 1972 (1) SCC 826 -Virendra Kumar Saklecha Vs Jagjiwan and others, (2) 2004 (11) SCC 183 Aboobacker Babu Haji and Edakoode Vs Pathumukutty Umma (Died). 9. The legislative competence of the High Court to make such rules has been upheld by Hon’ble Apex Court in the case of: (1) 1972 (1) SCC 826 -Virendra Kumar Saklecha Vs Jagjiwan and others, (2) 2004 (11) SCC 183 Aboobacker Babu Haji and Edakoode Vs Pathumukutty Umma (Died). 9. By virtue of power vested under Section 122 of Code of Civil Procedure High Court of Karnataka has formulated following rules: (1) The High Court of Karnataka Rules, 1959 and (2) The Karnataka Civil Rules of Practice, 1967. 10. Chapter X of High Court of Karnataka Rules, 1959 relates to “interlocutory Matters”. Rule 1(i) provides as to how an application filed during pendency of an appeal, reference petition or other matter presented is to be categorized and numbered. Same reads as under: CHAPTER-X Interlocutory Matters “1(1). All applications made during the pendency of an appeal, reference, petition or other matter presented to and pending in the High Court and connected with the same or with any decree, order or sentence or other proceeding of the subordinate Court which is the subject-matter of the same, and praying for any interim relief or order, shall be called Interlocutory Applications and be consecutively numbered separately in each appeal, reference, petition or matter as the case may be.” Rule 7 provides for service of such interlocutory applications and same reads as under: “7. In appeals and petitions in which notice to respondent has already been issued, and Interlocutory application shall not be numbered or posted unless parties to the appeal or petition affected by the application who are represented by Advocates have been served with notice of the application by delivering to each of such Advocates a copy of the applications together with a copy of the supporting affidavit or memorandum of facts and the written acknowledgment over the signature of each such Advocate or his registered clerk is taken either by endorsement on the application or otherwise and is filed in the court along with the application. If, however, the applicant’s advocate makes an endorsement on the application that such service on Advocate was either refused to be accepted or could not be effected inspite of due diligence, the Registrar may direct that the application be numbered and posted. If, however, the applicant’s advocate makes an endorsement on the application that such service on Advocate was either refused to be accepted or could not be effected inspite of due diligence, the Registrar may direct that the application be numbered and posted. Wherever it is intended to move the application as an emergent application, the copy of the application served on every Advocate under this Rule shall contain an endorsement stating that the application is intended to be moved as an emergent application on the day specified in the endorsement.” (Emphasis supplied by me) 11. Like wise, under Karnataka Civil Rules of Practice, 1967 Chapter III, provides for matters relating to “interlocutory application” which is to be filed in court in any pending suit, appeal or proceedings already instituted in such court. Rule 17 reads as under: “Rule 17-“Interlocutory application” means an application to the Court in any Suit, Appeal or Proceeding already instituted in such Court other than an application for execution of the decree or setting aside the decree or final order made in such Suit, Appeal or Proceeding, or an application for review of Judgment and includes every application seeking an order by way of aid pending final adjudication of the matter arising in the Suit, Appeal or Proceeding or for readmission of appeal dismissed for default.” 12. Likewise under proviso to sub-rule (1) of Rule 19 such interlocutory application if filed in a pending proceedings would not be posted before court unless such application is served either on the party appearing or on the pleader/counsel representing such party, unless an acknowledgment for having served the application is filed into court along with application. Rule 19 reads as under: “19. (1) Every Interlocutory Application shall, after presentation, be numbered and posted before the Court for orders: Provided that, when any party likely to be affected by it has already entered appearance by pleader, no such application shall be so posted, unless such pleader has been served with notice of the application by delivering to him a copy of the application together with a copy of the supporting affidavit or memorandum of facts, and the written acknowledgment over the signature of each such pleader or his registered clerk is taken either by an endorsement of the application or otherwise and is filed into Court along with the application. (2) If, however, the applicant’s pleader makes an endorsement on the application that such service on pleader was either refused to be accepted or could not be effected in spite of due diligence, the Court may direct that the application be numbered and posted. (3) Whenever it is intended to move the application as an emergent application, the copy of the application served on every pleader under this rule shall contain an endorsement stating that the application is intended to be moved as an emergent application on the day specified in the endorsement.” 13. It is in this context Rule 11(b) of the Company (Court) Rules, 1959 will have to be read and understood since rules made are procedural in nature which are formulated for effective administration of justice. 14. When an application is filed either invoking provisions of the Companies Act or the Companies (Court) Rules, notice of such application has to be taken out on those persons who have been arrayed as respondents. For the said purpose, Judges Summons in Form No.2 is required to be furnished, so that notice of such application is taken out on all those persons who would be affected by any order that may be passed thereon. 15. A Perusal of Rule 19 of the Companies (Court) Rules, 1959, would go to show than an application should be accompanied by Judges summons. So that it shall be served on all those persons against whom an order is sought to be made. A reading of sub-Rule (2) of Rule 19 would also go to show that Judges summons together with copy of the affidavit filed by an applicant has to be served upon every person against whom an order is sought and it is to be notified by pre-paid Registered Post or upon his advocate where such person is represented by an Advocate or in any other manner. The intention behind the said Rule is to ensure that affected person is heard and principals of natural justice is followed. The intention behind the said Rule is to ensure that affected person is heard and principals of natural justice is followed. Thus, furnishing of pre-paid Registered Posts along with the judges summons would arise under two eventualities viz., (i) where original proceedings has come to an end by order of Company Court; or (ii) where in the original proceedings one of the party has been served and had remained unrepresented and in such a situation if an application is filed and a fresh prayer is made against such a person who had remained unrepresented; 16. A combined reading of all these provisions namely Section 643 (1) & (2) of Companies Act, Section 122 of CPC, Rule 11(b) and 19(2) of the Companies (Court) Rules, 1959, Chapter X and Chapter III of The High Court of Karnataka Rules, 1959 and Karnataka Civil Rules of Practice, 1967 respectively, would go to show that all these provisions speak of service of notice of an application/Interlocutory Application (‘IA’, for short) is required to be served on such person against whom an order is sought for. However, if the parties against whom an order is sought for in such application/IA have already appeared and they are represented by Advocate, question of either issuing notice to the said person/s by pre-paid Registered Post or service of notice on such person/s, through any other mode is not required, since service of such application or IA can be made on the learned advocate representing such party and it would serve the purpose. However, in a situation where in a pending proceedings, the parties are served and where un-represented and any application or IA is made seeking additional prayer or further orders against those persons, then notice has to go to those persons necessarily as otherwise it would be in violation of principles of Natural justice and no order can be passed behind their back or without hearing them. In such a situation, it would be incumbent upon the Registry to insist on the applicant to furnish requisite number of applications/affidavits along with judges summons and pre-paid Registered post for issuing summons/notices on such application to those parties who had been served and had remained un-represented, since any order that may be passed on such application is likely to affect them. Issuance of notice of the application/s by Post or otherwise on those respondents, who are already represented and contesting the matter in a pending proceedings would not arise since they are already on record and represented by learned advocates and carrying out such an exercise would lead to prolonging the proceedings and results in delay and this is not the intention of the Legislature. Registry is directed to comply with these directions henceforth. 17. In the instant case respondents 1, 6 and 9 are represented by their learned Advocates M/s. Satish and Anand. Learned counsel Sri. Satish representing them submits that he has received a copy of C.A.397/2011. Notice of C.A.397/2011 issued on respondents 2, 3, 7 and 8 are duly served. C.A.616/2006 has already stood abated against respondents 4 and 5 and issuance of notice to those respondents does not arise. Hence, service of notice of C.A.397/2011 on all the respondents is held complete and sufficient. At request call on 30.08.201 to hear C.A.397/2011.