TMI Blog2001 (8) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days." The section itself does not exactly answer this controversy and so it lingers on and it appears that courts have not spoken uniformly on this issue either. Under the said Act, the word court has been used in various sections and some of those sections, which are relevant in the context of the controversy, are set out below : Section 2(11) of this Act is in the following terms : "(11) the court means, ( a )with respect at any matter relating to a company (other than any offence against this Act), the court having jurisdiction under this Act with respect to that matter relating to that company, as provided in section 10; ( b )with respect to any offence against this Act, the Court of a Magistrate of the First Class or, as the case may be, a Presidency Magistrate, having jurisdiction to try such offence;" Section 10 is in the following terms : "10. Jurisdiction of Courts. - (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company judge. In other words the question is whether the forum for hearing appeals under section 10F and under section 483 would be the same namely the Division Bench of the High Court or it would be different namely the court of the company judge in the case of appeals under section 10F from the order of the CLB. 5. The Original Side Rules of the Calcutta High Court do not throw any light on this controversy. Nor has any rule been framed by the High Court for hearing appeals under section 10F. The counsel for the parties have cited a few judgments which the court proposes to consider. The first decision on which reliance was placed by the learned counsel for the appellant was rendered in the case of Minoo H. Mody v. Hemant D. Vakil, AIR 1994 Bom. 39. In that case, the learned judges of the Division Bench of the Bombay High Court held : ( a ) appeals under section 10F shall be filed before the High Court on the original side and not on the appellate side, ( b ) such appeals shall have to be presented in the form of memorandum of appeal formulating questions of law arising out of the order which is appealed against, and ( c ) such appeals are to be heard by the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection, which was raised, was whether against the judgment of the learned single judge deciding the appeal under section 10F, a special appeal under rule 5 of Chapter VIII of the Allahabad High Court Rules is maintainable. In the context of that controversy the Division Bench, inter alia, held that ( i ) rule 5 of the said Rules is a reproduction of clause 10 of the Letters Patent; ( ii ) the CLB is a Tribunal and not a court; and ( iii ) the special appeal is maintainable since it is an intra-court appeal from the order of a single judge to the Division Bench. 10. The controversy with which this court is concerned here was not in issue in Prakash Timbers (P.) Ltd. s case ( supra ). But of the points, which were decided in the case of Prakash Timbers (P.) Ltd. ( supra ) one of them is of relevance here also namely that, the CLB is a Tribunal and not an ordinary court of civil jurisdiction. The said decision was given in Prakash Timbers (P.) Ltd. s case ( supra ) after analysis of the Supreme Court decisions and also a decision of the appeal court in the case of Shell Co. of Australia v. Federal Commissioner of Taxation [1931] AC 275. This court is in respectful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( c )compelling the production of documents or other material objects producible as evidence and impounding the same; ( d )examining witnesses on oath; ( e )granting adjournments; ( f )reception of evidence on affidavits. (4D) Every Bench shall be deemed to be a civil court for the purposes of section 195 and (Chapter XXVI of the Code of Criminal Procedure, 1973) and every proceeding before the Bench shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and for the purpose of section 196 of that Code." It cannot be disputed that substantial restructuring of the composition of the CLB has been brought about by the Companies (Amendment) Act, 1988 (Act 31 of 1988). Such amendments have been made on the recommendation of the Sachar Committee. The relevant portions of those recommendations on which the 1988 Amendment Act was modelled throw some light to show that the CLB is a Tribunal. Those recommendations are to the following effect: "We, therefore, feel that appropriate solution would lie in statutorily constituting an independent quasi-judicial Company Law Board broadly on the lines of the Income-tax Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is concerned in this case was not in controversy in Stridewell Leathers (P.) Ltd. s case ( supra ). Even, then in the judgment some observations of the Supreme Court would help the resolution of the controversy and those aspects are discussed below. 12. The learned judges of the Supreme Court held that the point for consideration in Stridewell Leathers (P.) Ltd. s case ( supra ) was whether with the change of original jurisdiction of the High Court in respect of the matters under sections 397 and 398 and vesting of the same with the CLB under section 10E, the forum of appeal remains unaffected by the change of forum of original jurisdiction. 13. After discussing the statutory definition, the learned judges in para 10 of the judgment held that the concerned High Court continued to be the forum of appeal notwithstanding the transfer of original jurisdiction from the concerned High Court to the CLB. 14. In para 15 of the judgment the learned judges have expressed the position that the order of the CLB in a given case may be amenable to writ jurisdiction of the High Court under article 226. Of course, the learned judges have made it clear that in exercise of jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly that no rule has been framed by the High Court laying down the practice and procedure for hearing of an appeal under section 10F. 16. The learned judges of the Division Bench, however, observed that the assigning of the appeal to the Division Bench is consistent with the amendment made and in the background of the changes in law. The learned judges further observed that since the power, which is exercised by the CLB under sections 397 and 398, were previously exercised by the learned company judge of the High Court and there is an appeal to the Division Bench from the order of the learned company judge so it appeared to the Division Bench that not only the original forum has been changed but the appellate jurisdiction is also to be exercised by the Division Bench. So the learned judges held that the matter has been rightly assigned by the Hon ble Chief Justice to avoid all controversy. The learned judges held that it is for the full court of this court to frame rules to decide whether a matter should be heard by a Division Bench or by a single judge. The learned judges further held that such matters are to be decided by the administrative side of this court and a litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 483 would only lie from any order made or a decision given in the matter of winding up of the company by a court. (6) Therefore, the appellate forum under section 483 cannot be invoked from any order of the CLB. It can only be invoked from an order of the court within the meaning of section 2(11). Those orders of the company court are not amenable to a writ court. (7) An appeal under section 483 is an intra court appeal and would lie to the same court where the original order has been passed. (8) Such appeal is not confined to a question of law only. (9) Such appeal would lie in the same manner and is subject to the same conditions in which appeals lie from any order of the decision of the court in cases within its ordinary jurisdiction. Therefore, there are substantial distinguishing features between the appellate forum under section 10F and the forum under section 483 and one cannot be equated with the other. Though the Bombay High Court has not decided this question, this court is definitely of the opinion that these two forums cannot be equated without doing violence to the statute. There is no dispute that the forum of appeal under section 483 is the Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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