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TMI Blog1984 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... the shareholders on the basis that he held 50 preference shares and 200 ordinary shares in the said company. The said application came up before a learned single judge of this court, before whom a preliminary objection was raised by the registry that the said application was not maintainable since the registered office of the company was not within the territorial jurisdiction of this court. Upholding the preliminary objection, the learned single judge took the view that the application was not entertainable by this court and dismissed the same by his order dated February 18, 1983. Against the said dismissal, the present company appeal under section 155(4) of the Act has been preferred. The appellant raised the controversy that this appeal must be heard by a Bench consisting of three or more judges, and to resolve the same, the matter was first directed to be placed before a Division Bench. Before it also the appellant maintained his stand that the appeal could only be heard by three or more judges, and the Division Bench, after observing about some obscurity of draftsmanship in the provision of sub-section (4) of section 155 of the Act and the consequent confusion arising theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny way an exceptional or extraordinary power of great moment or significance. Indeed, it was argued before us with plausibility that it is somewhat of a routine and relatively ordinary power conferred on the company court. Where such power is exercised by a District Court, the appeal therefrom is provided to the High Court and the statute does not in any way specify the number of judges who will hear such appeal. It may well be heard by a single judge and no further appeal therefrom is envisaged under the Act. However, where the original order under section 155(2) has been passed by a single judge of the High Court, an appeal therefrom is envisaged within the limitations of clause ( b ) of section 155(4). Now, it is trite learning that, ordinarily, appeals from the order of a single judge lies to a Division Bench under the letters patent jurisdiction. No reason even remotely, could be pointed out to us as to why in this particular context an exception may be made to the ordinary rule that an appeal from the order of a single judge must lie before a Bench of at least three judges or even more. Indeed, the Companies Act, in other contexts, provides for appeals against an order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the eye of law for many purposes. Consequently, there was no dearth of jurisdictions where, by a legal fiction, one or two Judicial Commissioners exercised jurisdiction in an area, or of smaller High Courts composed of less than three judges. Section 155(4)( b ) was thus clearly intended to distinguish and describe a High Court consisting of three or more judges as against the smaller ones. Now, once it is held that the phrase "consisting of three or more judges" is descriptive of the size of the High Court, the rest of the provision falls neatly into a correct perspective. The closing part of clause ( b ) provides that an appeal would lie "to a Bench of that High Court". Now, in plain and ordinary parlance, a Bench of a High Court, when we talk with regard to an appeal from a judgment or order of a single judge, means a Division Bench. A Bench of the court does not mean necessarily a Full Bench or the Full Court or a Bench of three or more judges. Even at the cost of repetition, it may be noticed that the phrase "consisting of three or more judges" follows the words "High Court" and does not in any way qualify or specify the Bench which is to hear the appeal. I have, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the opinion of the Senior Judge shall prevail." From the above, it is plain that where the Legislature envisages the minimum number of judges for constituting a Bench, it knows and employs categoric language for doing so. A similar provision exists in the following form in the Code of Criminal Procedure. "369. Confirmation or new sentence to be signed by two judges. In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such court consists of two or more judges, be made, passed and signed by at least two of them." It is unnecessary to refer to numerous other statutes and it seems to be manifest that whenever the minimum number of judges for composing a Bench of the High Court is to be mandated, then the terminology employed is entirely different from the one used in section 155(4)( b ). What appears to me as an argument of desperation was then raised by the appellant more vociferously but less logically in contending that section 155(4)( b ) would be arbitrary and it is unconstitutional because of the fact that in a High Court composed of less than three judges, no appeal would be competent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a virtual impossibility. Consequently, within this inherent limitation, the Legislature provided for a forum of appeal against the order of a single judge in the larger High Courts and gave finality to the order of the single judge in the smaller ones. Consequently, section 155(4)( b ), far from being arbitrary or unconstitutional, is a recognition of patent reality and rests on a reasonable classification. In the context of our Constitution, it has to be remembered that there is always a wide ranging residuary power of the final court under article 136 to correct any blatant injustice if it occurs from an order of the single judge against which no intra-court appeal may be possible. It seems unnecessary to elaborate further because the issue before us has been earlier the subject-matter of consideration in an unreported decision by a Bench of three judges, though at the order stage, in Upendra Kumar Joshi v. Kesoram Industries and Cotton Mills Ltd. (Second Appeal No. 646 of 1980, vide Order No. 19, dated February 8, 1982, converted into and numbered as Miscellaneous Appeal No. 263 of 1982 See [1983] 54 Comp. Cas. 2 (Pat.) [FB]). I am somewhat surprised that this judgment w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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