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TMI Blog2003 (10) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... this matter. 3. Mr. Sibal has raised a question with respect to maintainability of this Appeal. 4. This Appeal under section 483 of the Companies Act seeks to challenge the order dated 2nd September, 2003 passed by a learned Single Judge under section 10F of the Companies Act in Company Law Board and petition initiated by the Appellants under sections 397 and 398 of the Companies Act. 5. Mr. Sibal and Mr. Dwarkadas, learned counsels appearing for the respective Respondents, submit that section 100A of the Code of Civil Procedure abolishing further appeals in certain cases has come into force with effect from 1st July 2002 and thereafter the appeal of the present kind would not lie. Mr. Sibal submits that a Division Bench of this Court in an unreported judgment in the case of Bnenoy G. Dembla v. Prem Kutir (P.) Ltd. [Appeal No. 354 of 2003 dated 30-6-2003], has taken the view that against the decision of a Single Judge under section 10F of the Companies Act, there is no express conferment of a further right of appeal. He referred to para 13 of this judgment in that behalf. The Division Bench has observed in paragraph 8 of the said judgment, that as per the object be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision providing for a second appeal against the order of a Single Judge in the statute itself. An appeal specifically provided could alone be saved after introduction of section 100A of the Code of Civil Procedure and not otherwise. 9. Mr. Andhyarujina, learned counsel appearing for the Appellants, on the other hand, pointed out that the present appeal was under section 483 of the Companies Act. It provides for an appeal from an order made by a court in the matter of winding up of a company to the same Court. He emphasized the clause in the matter of winding up as occurring in this section and then submitted that such an order of the Single Judge covered the orders passed under sections 397 and 398 of the Companies Act. He particularly emphasized the provision of section 397(2)( b ) of the Act. Section 397(1) provides that if any member of a company complains that the affairs of the company are being conducted in a manner prejudicial to public interest, or in a manner oppressive to the member, such member may apply to the Company Law Board for an appropriate order. Sub-section (2) provides that ( a ) if the Company Law Board forms an opinion that the affairs of the company ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship then was in that Court) took the similar view. 11. When we consider the rival submissions, we have to note that section 100A in the Code of Civil Procedure, has now provided that no further appeal is available notwithstanding anything contained in any Letters Patent or any other law for the time being in force. However, section 4(1) of the Code of Civil Procedure provides as under : "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or any other law for the time being in force." It is seen that section 483 of the Companies Act has been interpreted by the Apex Court as providing an appeal against the order of a Single Judge to the Division Bench. This has been done by reading sections 397 and 398 along therewith. The question is whether section 4(1) of the Code of Civil Procedure saves this further appeal under section 483 of the Companies Act in the teeth of section 100A of the Code of Civil Procedure introduced from 1st July 2002. A straight reading of section 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though under the rules, there is no provision for the same. 14. If the submissions of Mr. Sibal are accepted, it will lead to repealing of special provisions such as section 109(5) of the Trade and Merchandise Act merely because of the bringing into force of section 100A of the Code of Civil Procedure. This will be so in spite of the provision under section 4(1) of the Code of Civil Procedure which protects the jurisdiction, powers and special forms of procedure under the special law and although there is no specific contrary provision in any manner as required by the first part of section 4(1) of Code of Civil Procedure. It is also material to note that though section 100A was brought into the statute book and brought into force, section 4(1) has been left undisturbed. Therefore, there has to be a specific provision to remove the appeal provision, which is otherwise available under the special law. It is also necessary to note that an appeal is a substantive right and not merely a procedural one. 15. As an example of a case where there is a specific curtailing provision, Mr. Andhyarujina referred to the judgment in the case of Union of India v. Mohindra Supply Co. AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Andhyarujina pointed out that this judgment and approach to section 202 therein has been specifically approved by the Apex Court in the above referred case of Shankarlal Aggarwala ( supra ). The Apex Court in terms held that the orders passed by the District Court or by a Single Judge in the matter of winding up petition are appealable under section 202 independently of the provisions of sections 96 and 104 of Code of Civil Procedure, 1908 or that of clause 15 of Letters Patent. Mr. Andhyarujina, therefore submitted that it was a right granted by special statute and not governed under the Code of Civil Procedure, it could not be reduced by any such provision like section 100A introduced in Code of Civil Procedure. He further pointed out that the provision of section 4(1) of the Code of Civil Procedure has been as it is although out and it was so in any case at the time when Aggarwal s case was decided. 17. Mr. Andhyarujina further submitted that the word Court under section 483 of the Companies Act will have to be read in the context in which it is defined under section 2(11) and section 10 of the Companies Act. It includes the District Court or the High Court on its Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the admission of the appeal on merits. He referred to two judgments of the Apex Court in this behalf. Firstly, he drew our attention in the case of Abdul Rahman v. Prasony Bai [2003] 1 SCC 488, wherein in paragraph 21, the Court observed that when the facts are admitted in a matter, and particularly when the suit can be disposed of on a preliminary issue, the maintainability of the suit can be adjudicated upon as preliminary issue. The observations in paragraph 9 in the case of T.K. Lathika v. Seth Karsandas Jamnadas [1999] 6 SCC 632 were also shown to us where the Apex Court observed that the High Court should have first decided the question of maintainability and only when said question was found in the affirmative, the merits could have been gone into. 21. Now, as far as the submission of Mr. Doctor is concerned, we will be and are giving our reasons in this order while considering the admission of the appeal. Hence, no separate order on this objection itself is required. The authority relied upon by Mr. Dwarkadas, viz., Municipal Corpn. of Brihanmumbai s case ( supra ) does not help him much because there is no specific second appeal against the order of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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