1963 (11) TMI 43 - HC - Companies Law

Summary

Issues:
- Adequacy of court fee paid on the memorandum of appeal.

Analysis:
The judgment revolves around the question of whether the court fee paid on the memorandum of appeal is adequate. The appellant sought an order for the winding up of a company, which was refused by Narayana Pai J., leading to the appeal. The appellant argued that the court fee paid was prescribed by Article 11 of Schedule II to the Court-Fees Act, 1870. This article specifies the court fee for a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. The appellant contended that since the appeal was not from a decree and was presented to the High Court, the prescribed court fee was sufficient.

The Government Pleader, on the other hand, argued that the order made by Narayana Pai J. had the force of a decree, making Article 11 of Schedule II inapplicable. The definition of a "decree" as per the Code of Civil Procedure was examined to determine if the order in question qualified as one. It was concluded that the order refusing the winding up of the company did not have the force of a decree. Section 433 of the Companies Act was highlighted to show that seeking an order for winding up is discretionary, not an absolute right, and does not involve an adjudication of rights in controversy.

The judgment delved into various provisions of the Court-Fees Act to ascertain the correct court fee payable. Provisions from Schedule I and Schedule II were analyzed, and it was established that none of the suggested provisions applied to the present case. The court ultimately ruled that the court fee paid by the appellant was correct, affirming the adequacy of the fee paid on the memorandum of appeal.

In conclusion, the judgment clarified the application of court fee provisions in the context of appeals from orders not constituting decrees. It emphasized the discretionary nature of seeking a winding-up order under the Companies Act and determined the correctness of the court fee paid by the appellant for the appeal.