TMI Blog2009 (12) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... d Single Judge of this Court dated 26-5-2009 deciding the Application for Correction in an earlier order dated 27-4-2007 passed by learned Single Judge in Civil Misc. Company Appeal/Objection No. 85/2007 in Company Application No. 4/97. The application has been rejected by a learned Single Judge vide its order dated 26-5-2009. The order dated 27-4-2007 was passed by learned Single Judge under Rule 164 of the Companies (Court) Rules, 1959 (hereinafter called the "Rules 1959"). In the matter of the report of the Official Liquidator, Uttar Pradesh adjudicating on the proof of debts and proposing to distribute the sale proceeds of the assets of the UP State Cement Corporation Limited (in liquidation) wound up by the Court on 8-12-1999. 3. Shri Ashok Mehta learned counsel appearing for the respondents raised a preliminary objection regarding the maintainability of this Special Appeal under Chapter VIII Rule 5 of the High Court Rules. He submits that the order which has been impugned is an order passed in appellate proceedings before the learned Single Judge under Rule 164 of Rules, 1959 hence both the Letters Patent Appeal as well as appeal under section 483 of the Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 483 and the above words only regulate procedure of filing the appeal. Reliance has been placed on the judgment of the Apex Court in Shankerlal Aggarwala s case ( supra ). The Apex Court in the aforesaid judgment had occasion to interpret section 202 of the Companies Act, 1913 which was a provision pari materia to the provision to section 483. 8.1 Following was laid down in para 18 of the judgment: "18. The question that would arise is as to what is meant by ordinary jurisdiction of the Court. Plainly the words would only exclude jurisdiction vested in the Court by special statutes as distinguished from the statutes constituting the Court. Undoubtedly, in the case of a High Court the limits of whose jurisdiction are governed by its Letters Patent, the Letters Patent would determine what the ordinary jurisdiction is. But that Letters Patent is not immutable and has been the subject of several alterations. Thus when the Companies Act was passed in 1913, an appeal lay from every judgment of a Single Judge of the High Court. But in March, 1919 it was amended so as to exclude the rights of appeal from judgment passed in exercise of revisional jurisdiction and in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra ) held that the appeal would lie in the same manner to the same Court. 10. In Smt. Arati Dutta s case ( supra ) an order was passed on a petition under sections 397 and 398 of the Companies Act against which order an appeal was filed in the High Court which appeal was decided by the Division Bench. Special Leave Petition was filed in the Supreme Court in which the question was considered as to whether the appeal before the Division Bench under section 483 was maintainable or not. 10.1 Following was laid down in paragraphs 6, 7 and 8 of the judgment which is quoted below : "6. The Court further held that there was nothing in section 483 of the Companies Act, 1956, which took away or curtailed the right of appeal provided by section 5(1) of the Delhi High Court Act, 1966, and clause 10 of the Letters Patent (Punjab) as applicable to the Delhi High Court; and that the jurisdiction conferred on the Company Judge of the High Court under section 10 of the Companies Act was none other than its ordinary civil jurisdiction and appeal lay also under clause 10 of the Letters Patent to a Division Bench from the order of the Company Judge. 7. In this case in the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to file an appeal from the decision of the learned Single Judge of the Gauhati High Court. If that is so rules should be framed by the High Court in its jurisdiction of Rule making power for filing and disposal of such appeals. But absence of the procedure rules do not take away a litigant s right to file such appeals when the statute confers such a right specifically and the jurisdiction of the High Court to dispose of such an appeal if so filed." (p. 327) 10.2 Smt. Arati Dutta s case ( supra ) was not a case where the learned Company Judge has exercised any appellate jurisdiction. 11. The Division Bench judgment of the Bombay High Court in Maharashtra Power Development Corpn. Ltd. s case ( supra ) was a case where the Company Law Board had passed an order against which an appeal was filed before the learned Single Judge under section 10F of the Companies Act. Learned Single Judge decided the appeal against which an appeal was filed before the Division Bench under section 483 of the Companies Act. Before the Division Bench of the Bombay High Court, reliance was placed under section 100A CPC which was amended with effect from July, 2002 excluding certain appeals. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause ( 2 ) can only apply to appeals not saved by sub-clause ( 1 ) of section 104. The finality provided by sub-clause ( 2 ) only attaches to Orders passed in Appeal under section 104, i.e., those Orders against which an Appeal under any other law for the time being in force is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative Intent of introducing section 4, CPC and the words by any law for the time being in force in section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that section 104 did not bar a Letters Patent. As Appeals under any other law for the time being in force undeniably include a Letters Patent Appeal, such appeal are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-clause ( 1 ), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in section 104(1) and incorporated section 4 in the CPC. Thus now a specific exclusion was provided. After 2002, section 100A reads as follows : 100A. No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge. To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither section 100A nor section 104(2) barred a Letters Patent Appeal. 67. Once, however, a right of appeal either in terms of sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court no further appeal shall lie notwithstanding the above three situations mentioned. The words "any other law for the time being in force" shall also cover the appeal under section 483 of the Companies Act. Thus, even if nothing can be read in section 483 excluding an appeal against an order of learned Single Judge of the High Court passed in exercise of appellate jurisdiction before the Division Bench, appeal against an order of the learned Single Judge passed in exercise of appellate jurisdiction is excluded under section 100A, Civil Procedure Code. The Apex Court has recently occasion to consider both section 483 of the Companies Act as well as section 100A, CPC in Kamal Kumar Dutta v. Ruby General Hospital Ltd. [2006] 70 SCL 222 . 14.1 In the above case, a petition under sections 397 and 398 of the Companies Act was filed before the Company Law Board. Company Law Board issued several directions on 29-10-1999. Against which an appeal was filed before the learned Company Judge under section 10F of the Companies Act. Learned Company Judge allowed the appeal. Learned Single Judge set aside the order of the Company Law Board against which order of the learned Single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcising Letters Patent in a matter where a Single Judge has decided the appeal from original order, has been taken away and it cannot be invoked in the present context. There is no two opinion in the matter that when the CLB exercises its power under sections 397 and 398 of the Act, it exercised its quasi-judicial power as original authority. It may not be a court but it has all the trapping of a court. Therefore, the CLB while exercising its original jurisdiction under sections 397 and 398 of the Act passed the order and against that order appeal lies to the learned Single Judge of the High Court and thereafter no further appeal could be filed." (p. 238) 14.2 The Division Bench of the Bombay High Court in Maharashtra Power Development Corpn. Ltd. s case ( supra ) on which the learned counsel for the appellant has placed reliance was specifically considered by the Apex Court in the case of Kamal Kumar Dutta ( supra ). In paragraph 25 it was laid down that the said judgment does not lay down the correct law. Following was laid down in paragraph 25 which is quoted below: "25. In this connection, our attention was invited to a decision of the Bombay High Court in Maharasht ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
