1970 (3) TMI 80 - SC - Companies Law

Whether the company judge was not justified in rejecting the prayer for an adjournment? Registrar s petition did not disclose any ground for admitting the winding up petition and much less for advertising it? Whether the appellate Bench of the Bombay High Court was not competent to summarily dismiss the appeal? Held that - As we are in agreement with the appellant s contention that the appellate Bench of the High Court was not competent to summarily dismiss the appeal, we have not thought it necessary to go into the other contentions advanced on its behalf. It is clear that appeals other than those mentioned therein are not to be placed for admission. In other words, they are entitled to be admitted as a matter of course. Therefore, the appellate Bench erred in summarily dismissing the appeal. It was bound to entertain the appeal and dispose of the same on merits. Appeal allowed.

Summary

Issues:
- Appeal against order for winding up of a company
- Maintainability of appeal before the Bombay High Court
- Competency of the appellate Bench to summarily dismiss the appeal

Analysis:
The judgment pertains to an appeal against the winding up of a company under section 433 of the Companies Act, 1956. The appeal originated from the decision of the appellate Bench of the Bombay High Court, which was directed against the order made by Kantawala J. in Company Petition No. 100 of 1969. The company judge had rejected the appellant's request for an adjournment during the hearing, leading to the order for advertisement of the winding up petition in various publications. The appellant contended that the order was not justified, and the Registrar's petition lacked grounds for admission and advertisement. The appellant also challenged the competency of the appellate Bench to summarily dismiss the appeal. The Supreme Court addressed the issue of maintainability of the appeal before the Bombay High Court, citing precedents that supported the appealability of such orders in winding up matters.

The Supreme Court analyzed the relevant provisions of the Companies Act and the Bombay High Court Rules to determine the appeal's maintainability. The Court noted that the order directing advertisement of a winding up application was appealable, as established in previous judgments. The Court rejected the argument that the order was interim and therefore not appealable under section 483 of the Companies Act. The appellant's contention regarding the rejection of adjournment and lack of grounds in the Registrar's petition was considered but not delved into due to the primary focus on the appellate Bench's competency.

The Court highlighted Rule 966A of Chapter XLII of the Bombay High Court Rules, which specifies cases where appeals must be placed for admission before a Bench. Since the present appeal did not fall within those specified cases, it was entitled to be admitted as a matter of course. Therefore, the appellate Bench erred in summarily dismissing the appeal and was obligated to entertain and decide the appeal on its merits. Consequently, the Supreme Court allowed the appeal, set aside the appellate Bench's order, and remanded the case for proper disposal in accordance with the law, without making any cost orders.