1. This company appeal had been admitted for hearing vide order dated 12.04.2012. An application has been moved on behalf of the respondents under Section 10G of Company Act, 1956 raising objection regarding jurisdiction of Single Judge Bench to hear the said appeal.

2. It is stated that the Company Law Board was heard by Principal Bench which was being presided over by Justice A.K.Banerjee, Chairman Company Law Board accompanied by Mr. Balasubramanium, Secretary Law Board. Prior to appointment as Chairman of Company Law Board, Justice A.K.Banerjee was Judge in Allahabad High Court.

It is further submitted that the Company Law Board is not a Court but a Tribunal and appeal lies to the High Court in whose jurisdiction the registered office of the company is situated.

3. Submission of the respondent present in person is that as the matter has been decided by Judge of the High Court, while sitting as Chairman of Company Law Board, the appeal cannot be heard by Single Bench of the High Court but by a Division Bench and has, therefore, prayed to refer the matter to Hon’ble The Chief Justice to transfer the matter before the appropriate Bench to hear and decide the appeal. He further submits that earlier the power under Sections 397 to 403 was vested with the Court and the Company Judge was examining the matters at his own level. It is further submitted that in terms of Section 397(2)(b), the Company Law Board may pass order to wind up the Company and thus, its powers akin to Company Judge to exercise powers under the Act for winding up of a Company. Thus, the powers of Single Judge are similar to that of the Company Law Board and, therefore, appeal would not lie against an order passed by a Company Law Board to the Single Judge. The respondent further submits that Rule 55 of the Rajasthan High Court Rules, 1952 lays down jurisdiction of the Single Judge which provides under Section 55 sub-section 5 jurisdiction of Single Judge to admit, hear and dispose of by a Judge sitting alone a suit or proceeding in the nature of a suit coming before the Court under the Companies Act, 1956 would not come within the ambit of jurisdiction of the Single Judge. Further it is submitted that the Board of Company Law Administration was constituted under Section 10E after the Companies Amendment Act, 1988 and the appeals under Section 10F of the Act of 1956 which was introduced as per the Amendment Act of 1988 which provides as under : -

“S.10F provides for “Appeals against the order of CLB” Any person aggrieved by any decision or order of the Company Law Board [made before the commencement of the Companies [Second Amendment] Act, 2002] may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board 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.”

4. It is also stated that as the provisions of Section Sections 397 to 403 are alternate to the winding up of proceedings and in the manner equivalent thereto, an appeal against any order passed under Section 397 of the Companies Act would not lie to the Single Judge and as appeal lies against order of winding before the Division Bench. Similarly the appeal against order passed under 397 would also lie before the Division Bench.

In support of his submissions, respondent present in person has relied on judgment passed by Supreme Court in case of Arati Dutta Vs. M/s Eastern Tea Estate (P) Ltd.; (1988) 1 Supreme Court Cases 523.

He further relies on judgment of Supreme Court in the case of Shanta Genevience Pommerat & Anr. Vs. Sakal Paper Pvt. Ltd. & Ors. ; (AIR 1983 SC 269) to show that the provisions of Sections 397, 398 and 403 of the Companies Act are infact an alternate to winding up. He also relies on ju