Rome v Punjab National Bank (No. 2)
| Jurisdiction | England & Wales |
| Judge | SIR JOHN MAY,LORD JUSTICE PARKER,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 06 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0706-3 |
| Date | 06 July 1989 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0674 |
[1989] EWCA Civ J0706-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr. Justice Hirst)
Royal Courts of Justice
Lord Justice Parker
Sir Roualeyn Cumming-Bruce
and
Sir John May
89/0674
MR. GAVIN LIGHTMAN, Q.C. and MR. STEPHEN RUTTLE (instructed by Messrs Ince & Co.) appeared on behalf of the Respondents/First and Second Plaintiffs.
MR. PETER SCOTT, Q.C. and MR. MICHAEL BRINDLE (instructed by Messrs Slaughter and May) appeared on behalf of the Appellant/Defendant.
This is an appeal against a judgment of Hirst J. of 27th October 1988. On that occasion the learned judge held that the writ in this action had been validly served on the defendant Bank pursuant to the provisions of section 695(1) of the Companies Act 1985. This was essentially a question of law. In case they had been wrong in their principal submission, however, the plaintiffs contended in the alternative that on the facts before the judge the Bank had established a place of business at the place at which the writ had been purportedly served and that accordingly that service had been valid pursuant to section 695(2) of the Act. In the light of his decision on the question of law raised on the first subsection, the learned judge dealt relatively briefly with the question of fact under the second subsection. Nevertheless he "had no hesitation whatever" in deciding it in favour of the Bank. In the proceedings before us, by the notice of appeal and respondents' notice respectively, each of the parties relied on the same principal contentions as they had before the learned judge.
The relevant statutory provisions are contained in Part XXIII of the Act, which is headed "Overseas Companies", and are as follows:
"691 (1) When a company incorporated outside Great Britain establishes a place of business in Great Britain, it shall within one month of doing so deliver to the Registrar of Companies for registration—
…
(b) a return in the prescribed form containing—
(ii) a list of the names and addresses of some one or more persons resident in Great Britain authorised to accept on the company's behalf service of process and any notices required to be served on it.
692 (1) If any alteration is made in—
…
(c) the names or addresses of the persons authorised to accept service on behalf of an oversea company,
the company shall, within the time specified below, deliver to the registrar of companies for registration a return containing the prescribed particulars of the alteration.
695 (1) Any process or notice required to be served on an oversea company is sufficiently served if addressed to any person whose name has been delivered to the registrar under preceding sections in this Part and left at or sent by post to the address which has been so delivered.
(2) However—
(a) where such a company makes default in delivering to the registrar the name and address of a person resident in Great Britain who is authorised to accept on behalf of the company service of process or notices, or
(b) if at any time all the persons whose names and addresses have been so delivered are dead or have ceased so to reside, or refuse to accept service on the company's behalf, or for any reason cannot be served,
a document may be served on the company be leaving it at, or sending it by post to, any place of business established by the company in Great Britain.
696…..
(4) If an oversea company ceases to have a place of business in either part of Great Britain, it shall forthwith give notice of that fact to the Registrar of Companies for that part; and as from the date on which notice is so given the obligation of the company to deliver any document to the registrar ceases."
The factual background to this case is as follows. Until 1986 the defendant Bank carried on part of their banking business at their premises at Moor House, London Wall and also at a number of provincial branches in England. By late 1986 the Bank had decided to cease its business in Great Britain. Its provincial branches had also been closed by the end of 1986 and its London office was closed by the end of March 1987.
By an agreement made at the end of December 1986 the bulk of the defendant Bank's assets and liabilities were transferred to the State Bank of India during 1987. The relatively small number of assets excluded from this agreement were transferred by the defendants back to India during 1987. In that year the defendants carried out a number of winding up or running down activities, as part of their cesser of business in Great Britain, by two employees, a Mr. Bakshi and a Mr. Golani, who worked from the offices of the State Bank of India in State Bank House, 1 Milk Street, London EC2P 2SP, once the Moor Street offices had been closed. Mr. Golani left for home in October 1987 and Mr. Bakshi in February 1988. Thereafter the defendants had no employees working for them in Great Britain. The defendants surrendered to the Bank of England their authorisation under the Banking Act 1987 with effect from the 31st December 1987.
Meantime, after earlier returns to the Registrar of Companies under the provisions of Part XXIII of the 1985 Act which I have quoted, the defendants delivered to the Registrar two returns, each dated the 13th August, 1987 nominating Mr. Bakshi and Mr. Golani, with their addresses, as the persons authorised to accept service on behalf of the defendants in the place of those previously nominated.
However by a letter dated 31st December 1987, signed on their behalf by Mr. Bakshi, the defendants also wrote in the following terms to the Registrar of Companies pursuant to the requirements of Section 696(4) of the Act:
"We refer to the registration of Punjab National Bank as an overseas company having a place of business in this country. We write to inform you that with effect from 31st December 1987 Punjab National Bank has ceased to have a place of business within the United Kingdom and consequently would you therefore please cancel this registration".
By letter in reply dated 15th January 1988 the Registrar confirmed that "the public file of the [defendants] has been closed".
On a date not later than the 29th February 1988 a copy of the defendants' letter to the Registrar of 31st December 1987 was filed in the Companies Registry, with a superimposed stamp stating "file closed 15th January, 1988". Nevertheless the two returns from the defendants of 13th August 1987 were not removed but remained on the file.
On 24th February 1988 the plaintiffs issued their writ in the action claiming inter alia a declaration that two policies of insurance under which the defendants were the assured had been validly avoided and the repayment of a sum exceeding $28m, which had been paid pursuant to a claim under those policies. For the purpose of this appeal I need not go into any further details.
On 2nd March 1988 a representative of the plaintiffs' solicitors who had been apprised by the 12th February 1988 of the contents of the relevant file at the Companies Registry, personally handed the writ to an official of the State Bank of India at the address stated in the returns of 13th August 1987 in an envelope addressed to Mr. Bakshi at that address together with a covering letter similarly addressed.
In the light of the relevant statutory provisions and against the factual background I have outlined, the plaintiffs rely upon this as good service of the writ on the defendants. However on 8th April 1988 solicitors acting for the latter issued a summons pursuant to Order 12, rule 8 seeking an order that the service or purported service of the writ on them should be set aside and/or that it should be declared that the writ had not been duly served on them.
It was this summons which came before the learned judge on 27th October 1988. He refused the relief sought. The defendants challenge that refusal in this appeal as I have indicated.
Mr. Scott's principal submission on behalf of the Bank in this appeal, repeating the submissions made on its behalf in the court below, was that section 695(1) of the Act must be construed in the context of Sections 691 to 696. If this is done then on the proper construction of the relevant subsection a nomination made in a return to the Companies Registrar under section 691, in particular under subsection (l)(b)(ii) of that section, cannot continue to have effect after the overseas company...
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