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2009 Supreme(All) 3879
[2010(1) ADJ 636 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND K.N. PANDEY, JJ.
U.P. CEMENT VETANBHOGI SAHKARI RIN SAMITI LTD. .....Appellant
Versus
OFFICIAL LIQUIDATOR AND ANOTHER .....Respondents
(Special Appeal No. 1748 of 2009, decided on 18th December, 2009)
Counsel :
W.H. Khan, J.H. Khan for the Appellant; Ashok Mehta for the Respondents.
Headnote:Allahabad High Court Rules, 1952—Chapter VIII, Rule 5—Companies Act, 1956—Section 483—Civil Procedure Code, 1908—Section 100-A (As amended by 2002 Amendment Act), 104(1), (2)—Companies (Court) Rules, 1959—Rule 164—Special appeal—Filling of—Correction application—Application rejected by Single Judge—Order passed by under Rule 164 of Companies (Court) Rules—In the matter of report of Official Liquidator, U.P., adjudicating on “proof of debts” and proposing to distribute sale proceeds of assets of U.P. State Cement Corporation Ltd. (in liquidation) wound up by Court on 8.12.1999—Preliminary objection raised by respondents regarding maintainability of this Special Appeal—Held, even if under Section 483, there was no condition prohibiting an appeal against an order of Single Judge passed in appellate exercise of jurisdiction, said exclusion has been now specifically provided in by Legislature under Section 100-A, C.P.C.—In instant case, order impugned was passed by Single Judge in C.M.Appeal/Objection No. 85/07—An application for correction was moved in the order, which has also been rejected—Single Judge decided appeal/objection against report of Official Liquidator exercising power under Rule 164—Application moved for correction in order passed in appellate exercise jurisdiction by Single Judge clearly bars further appeal under Section 483 of Companies Act as well as Letter Patent—Therefore, preliminary objection raised by respondent is upheld—And, this appeal is dismissed as not maintainable. [Paras 2, 17,19, 20, 21 and 22]
Result; Appeal Dismissed.
Hon’ble Ashok Bhushan, J.—Heard Shri W.H. Khan, learned Senior Advocate assisted by Shri J.H. Khan for the appellant and Shri Ashok Mehta for the respondents.
2. This Special Appeal under Chapter VIII Rule 5 of the High Court Rules has been filed against the judgment and order of the learned 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 videits 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 ‘U.P. 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, 1956 (“hereinafter called the Act 1956”) is barred. Shri Ashok Mehta learned counsel appearing for the respondents contends that the Special Appeal against the order of learned Single Judge passed in appellate jurisdiction is not maintainable. He contends that under Chapter VIII Rule 5 of the High Court Rules the Special Appeal is barred against an order passed by learned Single Judge in exercise of appellate jurisdiction. He submits that appeal under Section 483 of the Companies Act also cannot be entertained against an order passed by learned Single Judge passed in appellate exercise of jurisdiction. He submits that Section 100-A, C.P.C. also clearly bars any further appeal after order of learned Single judge in exercise of appellate jurisdiction.
4. Shri W.H. Khan, learned Senior Counsel appearing for the appellant refuting the submission of learned counsel for the respondents contends hat this appeal is clearly maintainable under Section 483 o the Companies Act, 1956. He submits that under Section 483 of the Companies Act, any order passed by learned Company Judge is appeallable. He has placed reliance on the judgement of the Apex Court in Shankerlal Aggarwala and others v. Shankerlal Poddar and others, AIR 1965 SC 507; Smt. Arati Dutta v. M/s. Eastern Tea Estate (P) Ltd., AIR 1988 SC, 325 and Maharashtra Power Development Corporation Ltd. v. Dabhol Power Co. and others, AIR 2004 Bom 38.
5. We have considered the submissions of the learned counsel for the parties and have perused the record.
6. We proceed to decide the preliminary objection raised by the leaned counsel for the respondents.
7. Learned counsel for the appellant has placed reliance under Section 483 of the Companies Act, 1956 for maintainability of the appeal . Section 483 provides as follows :
“483. Appeals from orders.-Appeals from any order made or decision given before the commencement of the Companies (Second Amendment) Act, 2002, in the matter of the winding up of a company by the Court shall lie to the same Court to which, in the same manner in which, and and subject to the same conditions under which, appeals lie from any order of decision of the Court in cases within its ordinary jurisdiction.”
8. Learned counsel for the appellant submits that the words used in Section 483 to the effect “in the same manner... and subject to the same conditions” cannot be interpreted to exclude the appeal under Section 483 and the above words only regulate procedure of filing the appeal. Reliance has
