TMI Blog2019 (10) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Principal Seat of Allahabad remained at Allahabad'. This is also evident from the fact that the number of Judges to sit at Lucknow would not be less than two but how much beyond that, has to be decided by Chief Justice. All other judges would sit at Allahabad. Similarly, territorial jurisdiction of New High Court at Lucknow is subject to determination of Chief Justice, which power could have been exercised for once. In respect of remaining areas, jurisdiction remained with New High Court at Allahabad. Further in a pending case, Chief Justice may transfer the matter for hearing to Allahabad but not vice versa. This shows that High Court at Allahabad has residuary authority. It can hear matters within jurisdiction of Judges sitting at Lucknow but not vice versa. All this go to show that New High Court at Allahabad can be termed as Principal Seat of High Court - Allahabad or Lucknow cannot be said to be a Permanent Seat of High Court and no such permanence in respect of seat has been visualized or provided by U.P. High Courts (Amalgamation) Order, 1948 as held by Constitution Bench in Sri Nasiruddin (supra) but Principal Seat of 'High Court of Judicature at Allahabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of Delhi Court and claimed that since property in dispute situate in Gudgaon District, State of Haryana, therefore, vide Section 16 C.P.C., suit for recovery of property could be instituted within local jurisdiction where disputed property situated and Delhi Court had no jurisdiction. Amendment was allowed and Trial Court framed an issue on the question of territorial jurisdiction. The issue of jurisdiction was decided as a 'preliminary issue' in favour of Builder. It was challenged in High Court, but failed thereat. Buyer thereafter brought matter in appeal before Supreme Court. Court considered scheme of Sections 15 to 20 C.P.C. and observed that Section 16 C.P.C. recognizes well established principle that actions against 'res' or 'property' should be brought in the forum where such 'res' is situate. Court had no jurisdiction over a dispute over which it cannot give an effective judgment. With respect to Section 20 C.P.C, Court said that it is a residuary provision and covers those cases, not falling within the limitations of Sections 15 to 19 C.P.C. Court also held that normally, if there is an agreement between parties regarding territoria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed. - SPECIAL APPEAL No. - 1481 of 2007 - - - Dated:- 17-10-2019 - Hon'ble Sudhir Agarwal AND Hon'ble Rajendra Kumar-IV, JJ. For the Appellant : Amit Saxena, Navin Sinha (Senior Advocate) For the Respondent : Anurag Khanna, A.K. Mishra, Arvind Srivastava, M. Ali, Om Prakash Misra, P. K. Singhal, R. K. Gupta, Rajnath N. Shukla, Satish Chaturvedi, Usha Kiran ORDER (Delivered by Hon'ble Sudhir Agarwal, J) 1. This intra Court appeal has been filed under Section 483 of Companies Act, 1956 (hereinafter referred to as Act, 1956 ) read with Chapter VIII, Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as Rules, 1952 ) assailing judgment dated 19.09.2007 passed by a learned Single Judge, (Hon'ble Sunil Ambwani, J, as His Lordship then was) in Misc. Company Application No.3 of 1999 in Re. M/S Universal Insulator and Ceramics Ltd (hereinafter referred to as Defaulting Company/Appellant ) rejecting objection with regard to jurisdiction of entertaining winding up petition at Allahabad and holding that Defaulting Company/Appellant is unable to pay its debts, hence it is just and equitable to wind up the same and consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of Act, 1985. BIFR's opinion was forwarded to this Court (Company Judge) at Allahabad by Registrar of BIFR vide letter dated 23.04.1999, which was received by Court on 03.05.1999. 4. Defaulting Company/Appellant represented through counsel,made a statement before Company Judge on 14.10.1999 that it shall pay entire debts and desired to revive itself. Company Judge, on 07.08.2000, after considering objections filed by respective parties, sanctioned schedule of repayment (One Time Settlement). Thereafter on various dates matter came up before Company Judge. Parties made correspondence, held meetings, got various orders of this Court from time to time but nothing concrete could come. 5. In the meantime Pradeshik Investment Corporation of Uttar Pradesh (hereinafter referred to as PICUP ) initiated coercive steps against Defaulting Company/Appellant by invoking personal guarantee of Promoter and Chairman/Managing Director in the light of decision taken in the meeting of PICUP on 14.05.2002. 6. Another Financial Institution i.e. Syndicate Bank, respondent 5, initiated recovery proceedings before Debt Recovery Tribunal (hereinafter referred to as DRT ) in T.A.No.165 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up of Company with further direction to Official Liquidator to take possession of assets of Company and proceed further. 13. Principally, judgment of Company Judge has been assailed on the ground of lack of jurisdiction, but simultaneously, though with hesitation, it has been argued on behalf of Defaulting Company/Appellant that there was no justification for learned Company Judge to pass order of winding up. Instead, opportunity should have been given to Defaulting Company/Appellant to clear outstanding dues. 14. Appeal has been contested by respondents. As we have already said that respondent 4, IIBI had granted financial assistance to Defaulting Company/Appellant and its dues are secured as charge has been created along with other Secured Creditors on movable and immovable properties of Company. Civil Misc. Application No.252663 of 2011 was filed stating that IIBI had transferred and assigned its debt to M/s IFCI Ltd, which is also a Public Company registered under Act, 1956 and also a Public Financial Institution , as defined under Section 4-A of Act, 1956. Under Assignment Deed dated 28.04.2011, IIBI assigned and transferred the deeds and documents guaranteed toget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and in public interest, that it is wound up under Section 20 (1) of Act, 1956. Consequently, BIFR forwarded the matter to this Court for necessary action according to law. Defaulting Company/Appellant preferred Appeal No.243 of 1999 before Appellate Authority for Industrial and Financial Reconstruction, New Delhi (hereinafter referred to as AAIFR ) but the same was also dismissed vide order dated 21.06.1999 passed by AAIFR observing that mere intention for rehabilitation on the part of Promoter is not sufficient and they have clearly failed to make any efforts to raise funds. It shows no possibility of rehabilitation of Defaulting Company/Appellant. Bank filed a suit for recovery before DRT only when Defaulting Company/Appellant failed to comply this Court's order dated 07.08.2000. Various applications were moved only as a pretext so as not to comply order dated 07.08.2000 by Defaulting Company/Appellant. All the proceedings initiated by Defaulting Company/Appellant were lacking bonafide on its part. This Court (Company Judge) modified order dated 07.08.2000 by order dated 15.10.2003, but even then it was not complied with though Bank's suit i.e. T.A. no.261 of 2002 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad. Learned Senior Counsel contended that a perusal of U. P. High Courts (Amalgamation) Order, 1948 shows that there existed two High Courts, one at Allahabad and another at Lucknow and both were amalgamated in a New High Court known as High Court of Judicature at Allahabad . In respect of such areas as determined by Chief Justice, jurisdiction was conferred to Judges sitting at Lucknow and rest were left to the jurisdiction of Judges sitting at Allahabad. U.P. High Courts (Amalgamation) Order, 1948, did not recognize any Principal Seat of High Court at either place and it was in the context of mere sitting of Judges whether at Lucknow or at Allahabad, which was relevant for deciding the cases. To assume that the High Court of Judicature at Allahabad has its Principal Seat at Allahabad and, therefore, in all residuary matters or even otherwise if the Judges sitting at Allahabad have taken cognizance that would be valid, is not correct, particularly when territorial jurisdiction in the matter of High Court is governed by constitutional provisions and if there is any lack of territorial jurisdiction the order would be void. Placing reliance on Supreme Court's judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any objection raised by concerned party with respect to territorial jurisdiction, the matter, if has proceeded for several years and many orders have been obtained by a party in its favour, subsequently it cannot raise issue of territorial jurisdiction. It is contended that in any case, the Judges sitting at Lucknow are only required to look into winding up and once winding up order is passed, thereafter matter has to be transferred to Allahabad for further proceedings. It shows that in the matter of winding up, main operations are to be conducted at Allahabad. Hence, here issue of territorial jurisdiction is only technical. For all practical purposes, jurisdiction is with Judges sitting at Allahabad. In any case, it is urged that it is not a case of inherent lack of jurisdiction in the matter of winding up. Thus, also the objection raised by appellant deserves to be rejected. It is lastly contended that objection of jurisdiction ought to have been taken at the earliest and not after availing several orders in favour of appellant and at a much later stage. With regard to such belated objection reliance is placed on Supreme Court's judgments in R.S.D.V. Finance Company Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding up order passed by Company Judge, is justified? 24. Now we proceed first to decide the first question which is of utmost importance, not only for the purpose of present case, but even otherwise. 25. The dispute in relation to territorial jurisdiction, i.e. cases admissible with reference to territory of this Court at Allahabad and Lucknow, is a perennial cause of discontentment and continuous cause of litigation. It has also involved rivalry of Advocates at these two places, since it directly affects quantum of work at two places. Therefore, it has attracted attention of this Court as well as Supreme Court, time and again. We can take judicial notice of the fact that territorial jurisdiction or division of cases on the basis of territory has become a serious point of confrontation amongst Advocates practising at Lucknow as well as Allahabad and many a times even Court's work has been paralysed due to abstention of Advocates from work for raising and pressing their demand in respect of certain cases, arising from particular area, whether admissible at Lucknow or Allahabad. In our view, it is high time when this aspect needs be considered threadbare so as to settle d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnor and Councils were authorized to administer justice in all the causes, civil as well as criminal, according to the laws of Kingdom and execute judgments accordingly. Charter of 1661 gave 'East India Company' power to make peace or war with non Christians, erect Fortifications and cease Interlopers. 29. Next is Charter of 1669 which for the first time gave territorial sovereignty to 'East India Company' by granting it, Port of Bombay. It also enlarged its administrative, judicial and governmental powers with civil and military government. 30. Charter of 1677 empowered 'East India Company' to establish a mint at Bombay for coining money i.e. Indian Rupees. Charter of 1683 gave Company full powers with respect to declaring wars and making peace with heathen nation (the nation where people do not follow Christianity) and King established a Court of Justice with maritime jurisdiction. Courts were empowered to adjudge and determine cases according to rules of equity and good conscience and laws and customs of merchants. 31. By Charter of 1687 'East India Company' established a Mayor's Court at Madras. It consisted of twelve Aldermen a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollectors of Revenue. 33. British Parliament passed Regulating Act in 1773 giving power upon Her Majesty to constitute Supreme Court in Bengal for British subjects and employees of Company. However, Charter of 1774 pursuant to Regulating Act, 1773 though established Supreme Court in Bengal but did not mention limitations. This omission caused a lot of conflict in opinion about jurisdiction of Supreme Court. For Indians living outside Calcutta, administration of justice was different. 34. In 1774, a minor alteration was made and Collectors were withdrawn by appointing Provincial Councils in six Divisions in respect of the set up of above Courts. 35. On 18.10.1775, superintendence of Criminal Courts was entrusted to Naib Nazim, who appointed Foujdars to preside over the said Courts. On 28.03.1780 it was decided to establish District Courts in six Divisions, which were made independent of Provincial Councils. In 1781, alleging that Foujdars have not satisfied the intended purpose, a change was brought in. Criminal Courts were continued in several Divisions subject to superintendence of Naib Nazim but English Judges of Dewani Adalats were appointed as Magistrates with power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressly excluded from their jurisdiction with certain exceptions. Designation of Dewani Adalat established in Murshidabad, Dacca and Patna were named after name of these cities, while of those established in several districts (Zillahs) were named after the name of District/Zillah. 39. By Regulation V of 1793 Provincial Courts of Appeal were established, which, besides having Appellate jurisdiction, also had original jurisdiction in certain matters. Appeals from Zillah and City Courts (Dewani Adalats), which till then were directly admissible in Sadar Dewani Adalat, were now to be filed in these Provincial Courts and appeals against Provincial Courts were to be filed in Sadar Dewani Adalat. 40. In effect Sadar Dewani Adalat and Sadar Nizamat Adalat of Bengal were presided over by Governor General and members of Supreme Council. These courts were meant to dispense justice to local inhabitants i.e. Indians and had no authority over British subjects. Extension to North 41. The territory around Banaras was ceded to 'East India Company' by Nawab Vazir of Awadh/Oudh in 1775. In 1781, Court of Justice vested with Criminal jurisdiction was established in the city of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibution of the same as to them shall deem fit and expedient, subject nevertheless in all cases to the superintendence, direction and control of the Commissioners for the affairs of India, in like manner as any Acts or Orders of said Courts of Directors are now by law subject. They are also given power to establish Court or Courts of Judicature. The British Government also was given power to establish a Supreme Court at Madras. Power of Supreme Court of Fort William in Bengal was extended over the province of Banaras and all places subordinate thereto including all districts thereafter annexed to the Presidency of Fort William. 44. Territory of 'East India Company' extended. In 1801 a major portion of the area, later known as 'Agra Province', was ceded to British by Nawab of Awadh. In 1803, Zillah Courts (District Courts) were constituted in the districts of Moradabad, Bareilly, Etawah, Farrukhabad, Kanpur, Allahabad and Gorakhpur vide Regulation II of 1803. By Regulation IV of 1803, a 'Provincial Court of Appeal' was established at Bareilly for exercising appellate jurisdiction over these Zillah Courts (District Courts). Appeals against decisions of Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be stationed at Allahabad and all the nine Divisions created in 1829 were placed within its jurisdiction. These Courts were created to mitigate discontent and dissatisfaction prevailed among the litigants due to expensive litigation, difficulties and delay experienced in prosecuting appeals in Bengal. Later, these two Courts, 'Sadar Dewani' and 'Nizamat Adalats' were shifted to Agra. 49. By Regulation X of 1831 a Board of Revenue was created at Allahabad. Revenue administration which was till then under Board of Revenue in Bengal, was shifted to Board of Revenue at Allahabad. In 1833, by Regulation II, Provincial Courts of Appeal were abolished. Their appellate jurisdiction including pending appeals, was transferred to 'Sadar Dewani Adalat', while original jurisdiction including pending suits was transferred to Zillah (District) and City Courts. 50. Government of India Act, 1833 (hereinafter referred to as G.I. Act, 1833 ) was enacted for effecting an arrangement with 'East India Company' and for better government of His Majesty, Indian territory. Vide Section 38 of G.I. Act, 1833, territories which were subject to government of Presidencies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local jurisdiction of any of three proposed High Courts of Calcutta, Bombay and Madras. Indian Council's Act 1861 empowered Governor General to create local legislatures in various provinces. 56. Thereafter the only 'Sudder Court' which remained was Court of Sudder Dewani and Nizamat Adalat for North-Western Provinces. This Court sat at Agra, although Bengal Regulation VI of 1831 provided that it was to be ordinarily stationed at Allahabad . On 17.03.1866 a Letters Patent for creation of a High Court was issued whereupon Court of Sudder Diwanny and Nizamut Adalat ceased to exist in North-Western Provinces and a High Court came into existence called as High Court of Judicature for North-Western Provinces . Aforesaid Charter conferred jurisdiction upon newly formed High Court in respect of Civil, Criminal, Testamentary and Interstate as well as Matrimonial matters. First sitting of High Court took place at Agra on 18.06.1866, but in 1868 it was shifted to Allahabad. 57. With regard to Avadh/Oudh, as we have already noticed, a Judicial Commissioner was appointed for disposal of Civil and Criminal cases. Court of Appeal was established in Lucknow in 1856 with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to the High Court of the North-Western Provinces of the Presidency of Bengal, and shall transmit the record of the case referred, and all the proceedings connected therewith, to the said Court. (emphasis added) 61. A perusal of aforesaid provision shows that a Judicial Commissioner in Oudh Provinces, if had any doubt as to the decision to be given by him, he would make reference to North-Western Provinces High Court and then the case had to be decided in accordance with judgment of High Court of North Western Provinces. 62. Offices of Lieutenant Governor of North-Western Provinces and Chief Commissioner of Oudh were combined in the same person in 1877. 63. As already said Judicial Commissioner was not the highest Court of Appeal in rent and revenue cases. For this purpose there was Financial Commissioner as higher Court. But Court of Financial Commissioner was abolished by Act No.XXXII of 1871 and his work was also entrusted to Judicial Commissioner. Civil Courts, on the lines of those in the North- Western Provinces, were established in Oudh/Avadh by Act No.XIII of 1879, which was amended by Act No.XVI of 1891. The same established following grades of Civil Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of high courts.-(1) The several high courts are courts of record and have such jurisdiction, original and appellate, including admirality jurisdiction, in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the court, and power to make rules for regulating the practice of the court, as are vested in them by letters patent, and, subject the provisions of any such letters patent, all such jurisdictions, powers and authority as are vested in those courts respectively at the commencement of this Act. 69. System of 'Judicial Commissioner' in Oudh/Avadh came to an end when U. P. Legislature with previous sanction of Governor General, as required under Section 80-A(3) of G. I. Act, 1915-1919, passed 'Oudh Court's Act', U.P. Act No.4 of 1925 (hereinafter referred to as U. P. Act, 1925 ). The local legislature of United Provinces of Agra and Oudh passed U. P. Act of 1925 and it received assent of Governor of United Provinces of Agra and Oudh on 03.04.1925 and Governor General on 04.05.1925. It was published under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t' and reads as under : 219.-(1) The following courts shall in relation to British India be deemed to be High Courts for the purposes of this Act, that is to say, the High Courts in Calcutta, Madras, Bombay, Allahabad, Lahore and Patna, the Chief Court in Oudh, the Judicial Commissioner's Courts in the Central Provinces and Bear, in the North-West Frontier Province and in Sind, any other court in British India constituted or reconstituted under this chapter as a High Court, and any other comparable court in British India which His Majesty in Council may declare to be a High Court for the purposes of this Act. Provided that, if provision has been made before the commencement of Part III of this Act for the establishment of a High Court to replace any court or courts mentioned in this subsection, then as from the establishment of the new court this section shall have effect as if the new court were mentioned therein in lieu of the court or courts so replaced. (2) The provisions of this chapter shall apply to every High Court in British India. (emphasis added) 74. Therefore, 'Chief Court in Oudh' was included within the meaning of 'High Court' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad , In subsequent part of Order, 1948 it has been referred as New High Court . Article/Clause (3) is reproduced hereinunder : 3. As from the appointed day, the High Court in Allahabad and the Chief Court in Oudh shall be amalgamated and shall constitute one High Court by the name of the High Court of Judicature at Allahabad (hereinafter referred to as the new High Court ). (emphasis added) 77. All the existing Judges, whether Permanent or Additional and Acting Judges in the existing High Court, became Judges in the same capacity of New High Court . Article/Clause 5 provided that the person who, immediately before appointed day, is the Chief Justice of High Court in Allahabad shall be the Chief Justice of New High Court , meaning thereby Chief Justice of High Court in Allahabad became Chief Justice of Amalgamated High Court i.e. New High Court . Article/Clause 5 (2) provided the order of other Judges i.e. Chief Judge of High Court in Oudh/Avadh, Puisne Judges of High Court in Allahabad and Puisne Judges of Chief Court in Oudh/Avadh and additional and acting Judges. It says that firstly, the former Chief Judge of High Court in Oudh/Avadh and former Puisne Judges o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and jurisdiction to be exercised thereat. This was to be done by an order/notification of Chief Justice of High Court of Judicature at Allahabad, otherwise the entire jurisdiction by declaration of law was at High Court of Judicature at Allahabad. 82. Article/Clause 9 of U. P. High Courts (Amalgamation) Order, 1948, provided application of laws relating to practice and procedure. It says that such laws as were enforced immediately before appointed day with respect to practice and procedure in High Court in Allahabad, with necessary modifications, shall apply in relation to New High Court and the power available to High Court in Allahabad before appointed day for making Rules and Orders in respect of practice and procedure, shall continue to be exercised accordingly. However, Chief Justice of New High Court was also given power by proviso to allow provisions with modifications in respect of practice and procedure in the New High Court sitting at Lucknow. Article/Clause 9 of Order, 1948, reads as under : 9. Subject to the provisions of this Order, the law in force immediately before the appointed day with respect to practice and procedure in the High Court in Allahba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis added) 86. Article/Clause 12 of U. P. High Courts (Amalgamation) Order, 1948 shows that with respect to forms of writs and other processes used, issued or awarded, procedure at High Court in Allahabad was applied with necessary modifications, if any, to New High Court i.e. High Court of Judicature at Allahabad, whether the Judges are sitting at Allahabad or Lucknow irrespective thereof. 87. The law in force immediately before the appointed day relating to the powers of Chief Justice, Single Judges and Division Courts of High Court in Allahabad and with respect to all matters ancillary to the exercise of those powers, with necessary modifications, was to apply in relation to New High Court as per Article/Clause 13 of U. P. High Courts (Amalgamation) Order, 1948. 88. Then comes Article/Clause 14 of Order, 1948, which talked of sitting of New High Court and it reads as under : 14. The new High Court and the Judges and Division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint : Provided that unless Governor of the United Provinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad, for the figures 12 the figures 21 shall be substituted and the entry relating to the Chief Court of Oudh shall be omitted; and (ii) in the Second Schedule, the entry relating to the Chief Court of Oudh shall be omitted and in the Note, the words a Chief Judge and an acting Chief Judge shall be omitted. (c) references in any Indian Law to either of the existing High Courts by whatever name shall, unless the context otherwise requires, be construed as references to the new High Court. (emphasis added) 92. Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948, thus provided sitting of New High Court at Allahabad. It further says that in the alternative, it may be such other places in the United Province as the Chief Justice with approval of Governor of United Province, appoints. First Proviso to Article/Clause 14 says that unless Governor of United Province with the concurrence of Chief Justice, otherwise directs, such Judges of New High Court , not less than two in number, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow, in order to exercise jurisdiction in respect of cases arising in such areas in Oudh/Avadh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cknow and exercise jurisdiction thereat. 96. Second proviso to Article/Clause 14 further confers power upon Chief Justice to pass order in respect of any case or class of cases, arising in the area of Oudh/Avadh, entertained by Judges sitting at Lucknow, to be heard at Allahabad. 97. These provisions of U. P. High Courts (Amalgamation) Order, 1948 and in particular Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 came up for consideration before a five Judges Bench of this Court in Sri Nirmal Das Khaturia and others vs. State Transport (Appellate) Tribunal, U. P. Lucknow, AIR 1972 Alld. 200. Four questions were referred for consideration by Larger Bench and fifth was formulated by Larger Bench itself and these five questions were as under :- (1) Can a case falling within the jurisdiction of the Lucknow Bench of this Court be presented at Allahabad? (2) Can the judges sitting at Allahabad summarily dismiss a case presented at Allahabad pertaining to the jurisdiction of the Lucknow Bench? (3) Can a case pertaining to the jurisdiction of Lucknow Bench, presented and entertained at Allahabad, be decided finally by the judges sitting at Allahabad, withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3294 of 1970. (emphasis added) 99. Matter went in appeal before Supreme Court and decided vide judgment in Sri Nasiruddin vs. State Transport Appellate Tribunal (supra). Supreme Court examined correctness of finding of this Court that New High Court has its seat at Allahabad, which is a permanent seat and the word or occurring in the main provision of Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 is to be read as and , meaning thereby that sitting shall be at Allahabad and such other places as appointed by Chief Justice. Another finding of Court was is respect of area of Oudh/Avadh and this Court said that Chief Justice can even reduce area to the extent of abolition of sitting of Judges at Lucknow and allocation of jurisdiction shall also be in the domain of Chief Justice. Further, Second Proviso was read by this Court that Chief Justice can pass such an order in respect of cases within jurisdiction of Lucknow to be filed at Allahabad or in a pending case to be transferred at Allahabad to be heard thereat. This Court said that the word 'heard' in Second Proviso applies not only to pending cases but also to cases which are yet to be file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion order is a special law which must prevail over general law. Law laid down by four Judges Bench of Supreme Court in Sri Nasiruddin (supra) holds good despite incorporation of explanation to Section 141 of Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C. ). 101. Again the law has been reiterated in Kusum Ingots and Alloys Ltd. vs. Union of India and others, 2004 (6) SCC 254. There, Company was registered under Act, 1956 with registered Office at Mumbai. It had obtained loan from Bhopal Branch of State Bank of India. Notice for repayment was issued by Bank's Branch at Bhopal in terms of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as Act, 2002 ) promulgated by Parliament. Vires of Act, 2002 was challenged in Writ Petition at Delhi High Court which was dismissed on the ground of territorial jurisdiction and matter came to Supreme Court. Supreme Court said that mere passing of legislation by itself would not confer any right to file writ petition unless a cause of action arises therefor. A parliamentary legislation when received assent of President and published in official gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. 27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. (emphasis added) 102. The above findings in Sri Nasiruddin (supra) show that Supreme Court held that it is in the prudence of the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to out of more than one place of sitting which place is the 'principal place' of such body, it has to be decided in the context of the constitution of the body, the work being discharged at different places of sitting and which place is broadly controlling general functions of Institution and body etc. 105. The meaning and connotation of words Principal and Permanent as we have already discussed are different and it would be prudent to refer meanings of two terms as defined in general as well as legal dictionaries :- Meaning of Principal (1) Collins Cobuild Advanced Learner's English Dictionary, Fourth Edition, Page-1134 :- Principal-Principal means first in order of importance (2) Black's Law Disctionary, Eighth Edition, Page-1230 :- Principal-Chief, primary, most important, one who authorizes another to act on his or her behalf as an agent. (3) Dr. A. R. Biswas Encyclopaedic Law Dictionary (Legal and Commercial), 3rd Ediction 2008, Page-1156 :- Principal-the person for whom an act is done by the agent is called 'principal'; a person who employs an agent to do some act for him. (4) P Ramanatha Aiyar's The Law Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now to Allahabad for hearing, but not vice versa. Therefore, Judges sitting at Allahabad may hear cases which were entertained by Judges sitting at Lucknow, since, cause of action had arisen within the area which has been decided by the Chief Justice to be entertained by the Judges sitting at Lucknow, but cases which relates to other parts of State of U. P. and have been entertained at Allahabad, cannot be heard at Lucknow, since no power of transfer of such cases is conferred upon Chief Justice. We do not find any otherwise provision for such transfer of cases. (III) Administrative control is also broadly in the Secretariat of High Court i.e. Registrar General at Allahabad, which governs entire State of U. P. (IV) When new High Court was constituted, Chief Justice of High Court at Allahabad was given status of Chief Justice of New High Court while Chief Judge of Chief Court of Oudh became a Puisne Judge , though senior-most among Puisne Judges. This also shows difference in status of two places, which was conceived even by U. P. High Courts (Amalgamation) Order, 1948. 107. We, therefore, have no hesitation in holding that the question, whether seat at Allahabad i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant extract of Judgment reads as under : The words as the Chief Justice may direct mean that the Chief Justice exercises the power to direct what the areas in Oudh are for exercise of jurisdiction by Judges at Lucknow Bench. Once that power is exercised, it is exhausted. The reason is that the areas once determined should hold good on account of certainty and to dispel problems being created from time to time by increase or decrease of areas. (emphasis added) 111. Court also held in para 33 with reference to Article/Clause 7 of U. P. High Courts (Amalgamation) Order, 1948 that thereunder New High Court has jurisdiction in respect of whole province. Article/Clause 14 deals with seats of High Court at Allahabad and Lucknow. It is only First Proviso to Article/Clause 14 of Order, 1948, which provides that unless Governor with concurrence of Chief Justice directs otherwise not less than two Judges shall sit at Lucknow in order to exercise in respect of cases arising in such areas at Oudh/Avadh, the jurisdiction and power vested in the New High Court . Then Court further said as under : The first proviso to paragraph 14 of the Order specifies the instrumentality thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd neither such area can be increased nor decreased, unless some decision is taken to change the place Lucknow itself by Governor in consultation of Chief Justice to make the place of sitting elsewhere. 115. The third finding of larger Bench in Sri Nirmal Das Khaturia (supra) that the place of filing application under Article 226 will be decided in the context of right of petitioner first, and if it is within area of Oudh/Avadh then it can be filed at Lucknow otherwise at Allahabad, has also been reversed by Supreme Court. It has held if cause of action arose because of appellate order or revisional order which came to be passed at Lucknow, then Lucknow would have jurisdiction though original order was passed at a place outside the areas in Oudh/Avadh. Supreme Court, therefore, has summarized its conclusions in respect of above findings of Larger Bench of this Court, which have been reversed, as under : (1) There is no permanent seat of High Court at Allahabad. Seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. (2) Chief Justice has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Statutes enacted thereafter. In 1925 vide Oudh Courts Act, a Chief Court for Oudh was constituted consisting of one Chief Judge and four Puisne Judges. They continued till U. P. High Courts (Amalgamation) Order, 1948 was enacted amalgamating both Courts at Lucknow and Allahabad in one High Court called as 'High Court of Judicature at Allahabad'. Though Government of India Acts were enacted from time to time and first one, being Government of India Act, 1800, was enacted with further Regulations for establishing British domain in India and better administration of justice within the same, but Chartered High Courts established under the provisions of Indian High Courts Act, 1861 came to be governed together for the first time by Government of India Act, 1919 i.e. 1915-1919 and Section 101 thereof provided that High Courts referred to in the said Act are such which were established in British India by Letters Patent. 118. By Section 130 of G.I. Act, 1915-1919, Acts specified in Fourth Schedule were repealed and Indian High Courts Act, 1861 and Indian High Courts Act, 1865 in entirety were repealed. The G.I. Act, 1915-1919 obviously did not cover Judicial Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad or Lucknow cannot be said to be a Permanent Seat of High Court and no such permanence in respect of seat has been visualized or provided by U.P. High Courts (Amalgamation) Order, 1948 as held by Constitution Bench in Sri Nasiruddin (supra) but Principal Seat of 'High Court of Judicature at Allahabad' is at 'Allahabad'. 122. Now coming to the second question with regard to jurisdiction conferred in respect of 'Company Judge', we find that certain Notifications under Article/Clause 14 have been issued in exercise of powers under U. P. High Courts (Amalgamation) Order, 1948 and relevant Notifications are dated 26.07.1948, 15.07.1949, 02.07.1954, 05.08.1975, 04.01.2003 and 14.01.2003. 123. The earliest order passed by Chief Justice in purported exercise of power under Article/Clause 9 of U. P. High Courts (Amalgamation) Order, 1948 is Notification dated 26.07.1948 and it reads as under : In exercise of the powers conferred by Article 9 of the United Provinces High Courts (Amalgamation) Order, 1948, the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that as from the 26th of July, 1948, until further orders, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is notification. (emphasis added) 125. Then comes Notification dated 02.07.1954 which was also issued in purported exercise of power under Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 and reads as under : No.6984/Ib-39.-In exercise of the powers conferred by Article 14 of the U. P. High Courts (Amalgamation) Order, 1948 and in supersession of the Court's notification no.8427/Ib-39-49, dated July 15, 1949, the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that with effect from July 10, 1954, the Lucknow Bench of the High Court of Judicature at Allahabad shall exercise jurisdiction and power in respect of cases under the following Acts arising within its existing territorial jurisdiction : (1) The Indian Divorce Act, 1869 (Act IV of 1869). (2) The Special Marriage Act, 1872 (Act III of 1872). (3) The Indian Succession Act, 1925 (Act XXXIX of 1925). (4) The Indian Matrimonial Causes (War Marriages) Act, 1948 (Act XL of 1948). Jurisdiction and power in respect of cases under the Indian Companies Act, 1913 (Act VII of 1913) and the Indian Income tax Act, 1922 (Act XI of 1922) shall be exercised by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not to exercise jurisdiction and power of the High Court in respect to these class of cases. AND WHEREAS it is desirable that the Lucknow Bench of the High Court of Judicature at Allahabad should exercise the jurisdiction and power of the High Court in respect of cases under the Income-Tax Act, 1961 and under the Companies Act, 1956 upto the stage of winding up arising within the area of erstwhile Oudh. NOW THEREFORE, in exercise of the powers conferred by Clause 14 of the U. P. High Court (Amalgamation) Order, 1948 and in supersession of the notifications No.8427/Ib-39-49 dated July 15, 1949 and No.6984/Ib-39 dated July 2, 1954, the Hon'ble the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that with effect from 1st October, 1975, the Lucknow Bench of the High Court of Judicature at Allahabad shall exercise the jurisdiction and power of the High Court in respect of the cases under the following Acts arising in the areas of erstwhile Oudh : 1. The Income Tax Act, 1961 (Act No.XLIII of 1961) 2. The Companies Act, 1956 (Act No.1 of 1956) upto the stage of winding up i.e. upto the stage of proceedings under Section 439 Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.7 of 1979) connected with the case of Sri Jugal Kishore Vs. Official Liquidator dated 24.9.1982, which have since attained finality, specially the observations made therein, the position in regard to the exercise of jurisdiction, entertainment and disposal of the matters falling within the ambit of the Companies Act as enforced w.e.f. 25th July, 1949 shall stand restored in supersession of the intervening orders covering the subject passed thereafter. 132. Immediately thereafter it was brought to the notice of Chief Justice that Notification dated 05.08.1975 conferred jurisdiction upon Judges sitting at Lucknow in the matter of Act, 1956, particularly winding up petition upto the proceedings under Section 439 of said Act. Consequently, another order was passed by Chief Justice on 14.01.2003 to the following effect : Since the order dated 5th August 1975 passed by the Hon'ble Chief Justice in exercise of powers conferred by clause 14 of the U. P. High Court (Amalgamation) Order, 1948, in supersession of the notification dated 15th July, 1949, had not been brought to my notice it will be appropriate that the order dated 4.1.2003 is suitable modified. Accordingly it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby learned Company Judge sitting at Allahabad had directed for winding up of Company and by order dated 17.10.2006, recall application of winding up order was rejected. Both these orders were held, in intra Court appeal heard by a Division Bench in M/s Sumac International Ltd. (supra), as without jurisdiction. In para 3 of judgment, referring to Supreme Court's judgment in Sri Nasiruddin (supra), Court said that Lucknow Bench has exclusive jurisdiction with regard to cases which arise in respect of places, which were part of erstwhile Avadh/Oudh. Division Bench categorically said that despite earlier Division Bench judgment in Sumac International Ltd (supra) i.e. AIR 1997 Allahabad 424, Court cannot take an otherwise stand when it is clear that Allahabad Seat does not have jurisdiction in the matter. It held that on the point of jurisdiction, there cannot be any res judicata. It also held that an order without jurisdiction is valid only for parties, who choose to treat it as valid, but otherwise such order can be disregarded by parties, and therefore, even more so by Court, before which such orders come to be considered and applied at later times. Court in paras 25 and 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could not allow the plea without hearing the affected party and without determining on objective criteria and upon investigation whether the case was (a) transferable, and (b) should be transferred. His decision would affect the right of the appellant to choose her forum convenients . He was, therefore, acting as an adjudicating body empowered by the Constitution to discharge judicial functions. We would accordingly hold that the Chief Justice while exercising jurisdiction under para 14 of the 1948 Order, acts as a judicial authority with all the attributes of a court... (emphasis added) 139. In para 21 of the judgment, Court also said that the power of transfer from Lucknow to Allahabad will arise where judges at Lucknow have jurisdiction, and further, power will be exercised for 'hearing' the matter at Allahabad, but if the matter has already been 'heard', then Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 giving power to transfer a case from Lucknow to Allahabad will not be available. Relevant observations are as under : The proviso assumes first, that the case or class of cases to be transferred by the Chief Justice from Lucknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 17.02.1997, District Court framed issues but no issue with regard to territorial jurisdiction was framed, since, there was no dispute between parties. It is only on 22.08.1997 i.e. after more than eight years of filing of written statement, Builder filed an application under Order 6 Rule 17 C.P.C. seeking amendment in the written statement by raising objection with regard to jurisdiction of Delhi Court and claimed that since property in dispute situate in Gudgaon District, State of Haryana, therefore, vide Section 16 C.P.C., suit for recovery of property could be instituted within local jurisdiction where disputed property situated and Delhi Court had no jurisdiction. Amendment was allowed and Trial Court framed an issue on the question of territorial jurisdiction. The issue of jurisdiction was decided as a 'preliminary issue' in favour of Builder. It was challenged in High Court, but failed thereat. Buyer thereafter brought matter in appeal before Supreme Court. Court considered scheme of Sections 15 to 20 C.P.C. and observed that Section 16 C.P.C. recognizes well established principle that actions against 'res' or 'property' should be brought in the foru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. 144. Thereafter Court said that so far as jurisdiction of subject-matter is concerned, it is totally distinct and stand on different footing. Where a Court has no jurisdiction over subject-matter of suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by Court having no jurisdiction qua subject matter, is a nullity. In para 32 of judgment, relying on its earlier judgment in Bahrein Petroleum Company vs. P. J. Pappu, AIR 1966 SC 634, Court held : A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice. (emphasis added) 145. When we look at aforesaid judgment and apply it to facts of present case, on the one hand, it appears that it is a simple case of objection relating to territorial jurisdiction, but we find that here objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, question (4) is discharged unanswered. 149. In view of above discussions, it cannot be said that winding up petition at Allahabad in respect of Defaulting Company/Appellant was maintainable at Allahabad, since, registered office of Company is at A/2, Site No.2, Industrial Area, Rae Bareli having its territorial jurisdiction with Judges sitting at Lucknow. Therefore, order passed by learned Single Judge for winding up of company at Allahabad, is patently without jurisdiction. 150. Lastly, it has to be seen as to what ultimate order should be passed since, order of winding up was not passed on a winding up petition, but it is on a Reference made by BIFR. Here winding up proceedings have been initiated not at the instance of an individual party but on a Reference made by BIFR under Section 20 (1) of Act, 1985, which was received at Allahabad. It was enjoined upon Registrar General to remit Reference to Lucknow for further action, but, he committed mistake by placing it before Company Judge at Allahabad. Thus appropriate order would be to direct Registrar General to forward Reference received from BIFR to Registrar at Lucknow for placing it before Company Judge sitting at Luc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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