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TMI Blog1960 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... der or decision of the High Court in a civil proceeding only when the amount or value of the subject-matter of the claim exceeds Rs. 5,000. In this case the amount involved is much below Rs. 5,000 and, therefore, no appeal would lie. Mr. Chandmal for the appellant asserts that the appeal is maintainable and section 45N of the Banking Companies Act has no application to this case. He relies upon section 202 of the Companies Act and section 18 of the Rajasthan High Court Ordinance in support of his contention that an order passed under section 235 of the Companies Act being an order made in the course of the winding up proceedings is appealable and that the inhibition of section 45N of the Banking Act cannot be invoked to defeat the right of appeal. The learned counsel contends that proceedings under section 235 of the Companies Act are appealable as a matter of course under section 202 of the said Act. Section 235 provides that where in the course of winding up of a company, it appears that any person, who has taken part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company has misapplied or retained or be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make an order against such person to repay and restore the money or property unless he proves that he is not liable to make the repayment or restoration either wholly or in part. We need not refer to the other parts of the section, except sub-section (2), which provides also for an order of attachment in appropriate cases. Obviously on the authority of the section when an application under section 235 of the Companies Act is made to the court, the court acts under section 45H of the Companies Act and passes appropriate orders. It has to follow the procedure which is laid down in that section in order to come to a finding whether the money or property is repayable or liable to be restored by the person against whom the application has been made. The order passed under the provisions of this law would be necessarily subject to the restriction provided in section 45N of the Banking Act as to the right of appeal. As already shown this section does not permit an appeal from any order or decision of the High Court in a civil proceeding under this Act when the amount or value of the subject-matter of the claim does not exceed Rs. 5,000. It follows, therefore, that the appeal is not mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 935] 5 Comp. Cas. 445 the proceedings in question were characterised as domestic proceedings between the company and its officers. In Official Liquidator, Universal Bank v. Liaqat Hussain AIR 1933 All. 205 the question was of furnishing security by the official liquidator and it was incidentally observed that such proceedings cannot be said to be a suit or other legal proceeding within the meaning of section 280 of the Companies Act. In Reference under section 28 of Act No. VII of 1870 [1895] I.L.R. 17 All. 238 the order was under section 214 of the Indian Companies Act, 1882, which section was almost in similar terms as the present section 235 of the Indian Companies Act. It was observed there that the order passed under that section was not a decree or an order having the force of a decree and consequently no ad valorem court fee was payable. Incidentally also the learned judge observed that the proceedings leading up to such an order, if it be an order, are not in the strict and technical sense judicial proceedings at all because no procedure is imposed at any stage, no persons need be formally cited, no plaint need be filed, no party has a right to prove his case in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) of this section says that all orders made in any civil proceeding by a High Court may be enforced in the same manner in which decrees of such court made in any suit pending therein may be enforced. Both parties relied upon the language of this section in support of their respective contentions. The learned counsel for the respondents submits that since the order is enforceable as a decree it should be treated on the same footing as a decree passed by this court and as such any appeal preferred against the decree is subject to the payment of ad valorem court fee under Schedule I, article (1), of the Court Fees Act. Mr. Chand Mai, however, points out that it is merely an order passed by this court under section 235 of the Companies Act read with section 45A of the Banking Act and although it may be enforceable as a decree it is not a decree proprio vigore. Consequently it cannot fall under article (1) of Schedule I of the Court Fees Act and no Court fee can be demanded on that basis. Appeals against any such order should be just in the same manner as any appeal from an order. We are inclined to agree with the latter contention. It may be observed that no rules have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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