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2014 (1) TMI 1858 - HC - Companies LawJurisdiction of Civil Court - proceedings before the BIFR - violation of the injunction of the civil court - participation of a Member of the BIFR, in the proceedings - Held that:- The Privy Council way back in 1940 in the case of Secretary of State v. Mask and Co. [1940 (3) TMI 7 - BOMBAY HIGH COURT], was examining the question of jurisdiction of the civil court to entertain the related suit in view of the provisions of the Sea Customs Act, 1878. It was held that exclusion of jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It was further held that even if jurisdiction is so excluded, the civil courts would have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or where the statutory tribunal has not acted upon in conformity with the fundamental principles of judicial procedure. Appeal filed under the provision of Order XLIII, rule 1(r) of the Code of Civil Procedure, 1908, i.e., against the order of injunction - Held that:- This provision is relatable to section 104 of the C.P.C. Admittedly, the appellant is not a party to the suit. In the appeal filed, the appellant has basically assailed the injunction order on the ground of lack of jurisdiction, though other grounds are also taken - It is a settled proposition of law that the right of appeal is a creature of the statute and would be governed by the conditions of the statute. Being a vested right, it enables a party to the suit to prefer an appeal subject to fulfillment of the required conditions. However, there may be cases where a person, who may not be a party to the suit, but may feel the necessity to prefer an appeal, against an order passed in the suit. Such a person can also file an appeal provided he seeks leave of the court and the court grants the leave for the purpose. In the present case, it is seen that the appellant has not sought leave of the Appellate Court and, consequently, no leave to file appeal has been granted. Since the appellant is not yet a party to the civil suit, question of him raising the objection as to jurisdiction before the civil court also does not arise at this stage - this court is of the considered opinion that the appeal filed by the appellant is not maintainable in the present form. As the appeal is being held to be not maintainable, deliberation on the merit of the injunction order dated May 13, 2013, is considered not necessary. Quashing of the proceedings before the BIFR dated May 16, 2013 and the order of the BIER dated July 1, 2013, passed in BIFR Case No. 149 of 1994 - Held that:- The BIFR not being a judicial forum superior to the Civil Court at Guwahati could not have ignored the order of the civil court by terming the same to be one by corum-non-judice. Until and unless the injunction order of the civil court is vacated or recalled by an appropriate judicial forum, the same must be respected and given effect to. Moreover, the Allahabad High Court did not give any direction to the BIER to examine net worth of the company. While dismissing the writ, it was observed by the Allahabad High Court that the issue can be raised before the BIFR. This cannot be construed to mean a positive direction to the BIER to proceed and decide the issue. There is thus no inconsistency or conflict between the order of the Allahabad High Court and the order of the civil court as observed by the BIFR. Petitioner recused himself from hearing the case - Held that:- It goes without saying that justice must not only be done, but must be seen to have been done. Likewise, to dispel any apprehension of bias which a party may harbor against the presiding officer hearing the case, the test applied should be from the stand point of the litigant. It is his apprehension which must be addressed and dispelled even though the presiding officer may not at all be biased in the case - Coming to the present case, having once recused himself from hearing the case, it is neither desirable nor expected that the hon’ble Member should again start hearing the case, moreso when proceedings have assumed almost adversarial character. Application disposed off.
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