2009 (12) TMI 520 - HC - Companies Law

Maintainability of this Special Appeal under Chapter VIII Rule 5 of the High Court Rules - Held that - The application moved for correction in the order passed in the appellate exercise of jurisdiction by the learned Single Judge clearly bars further appeal under section 483 of the Companies Act, as well as Letters Patent as laid down by the Apex Court in the case of Kamal Kumar Dutta 2006 (8) TMI 313 - SUPREME COURT OF INDIA Thus the preliminary objection raised by Shri Ashok Mehta is upheld and this appeal is dismissed as not maintainable.

Summary

Issues Involved:
1. Maintainability of the Special Appeal under Chapter VIII Rule 5 of the High Court Rules.
2. Interpretation of Section 483 of the Companies Act, 1956.
3. Applicability of Section 100A of the Civil Procedure Code (CPC).

Issue-Wise Detailed Analysis:

1. Maintainability of the Special Appeal under Chapter VIII Rule 5 of the High Court Rules:

The appeal was filed against the judgment and order of the learned Single Judge dated 26-5-2009, which rejected an application for correction in an earlier order dated 27-4-2007. The application was related to the report of the Official Liquidator on the 'proof of debts' and the distribution of sale proceeds of the UP State Cement Corporation Limited. The respondents raised a preliminary objection regarding the maintainability of the Special Appeal, arguing that the order impugned was passed in appellate proceedings under Rule 164 of the Companies (Court) Rules, 1959, and thus, both the Letters Patent Appeal and appeal under Section 483 of the Companies Act, 1956, are barred.

2. Interpretation of Section 483 of the Companies Act, 1956:

The appellant contended that the appeal is maintainable under Section 483 of the Companies Act, 1956, which provides that appeals from any order made or decision given in the matter of the winding up of a company by the Court shall lie to the same Court in the same manner and subject to the same conditions as appeals from any order or decision of the Court in cases within its ordinary jurisdiction. The appellant relied on several judgments, including Shankerlal Aggarwala v. Shankerlal Poddar (AIR 1965 SC 507) and Smt. Arati Dutta v. Eastern Tea Estate (P.) Ltd. (AIR 1988 SC 325), to argue that the words "in the same manner... and subject to the same conditions" regulate the procedure of filing the appeal and do not exclude the appeal under Section 483.

3. Applicability of Section 100A of the Civil Procedure Code (CPC):

The respondents argued that Section 100A CPC bars any further appeal after the order of a learned Single Judge in exercise of appellate jurisdiction. The court noted that Section 100A begins with a non obstante clause and provides that no further appeal shall lie from the judgment, decision, or order of a Single Judge in such appeal or from any decree passed in such appeal. The court referenced the Apex Court's judgment in Kamal Kumar Dutta v. Ruby General Hospital Ltd. (2006) 70 SCL 222, which held that Section 100A CPC, as amended by the 2002 Amendment Act, excludes further appeals against orders passed by a learned Single Judge in appellate jurisdiction.

Conclusion:

The court upheld the preliminary objection raised by the respondents, concluding that the appeal is barred under Section 100A CPC. The court dismissed the appeal as not maintainable, noting that the application for correction was moved in an order passed in the appellate exercise of jurisdiction by the learned Single Judge, which bars further appeal under Section 483 of the Companies Act, as well as Letters Patent, as laid down by the Apex Court in Kamal Kumar Dutta's case.