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TMI Blog2007 (6) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... have been filed by the Andhra Pradesh State Financial Corporation against orders passed by the company judge on July 25, 20033 and March 18, 2004, in Company Applications Nos. 535 and 536 of 2002 and 467 and 473 of 2001, respectively in Company Petition No. 48 of 1989. A preliminary objection has been raised by the respondents that these appeals are not maintainable, as such, they should be rejected. It is contend that the orders have been passed by the learned company judge in an appeal against the order of the official liquidator and a further appeal to this court is barred in view of the amendment to section 100A of the Code of Civil Procedure, 1908, with effect from July 1, 2002. Learned counsel for the appellants, on the other hand, submits that the order passed by the company judge is not an order passed in a judicial proceeding, as such the word "appeal" used in rule 164 of the Companies (Court) Rules, 1959 (for short "the Rules") was a misnomer. In order to appreciate the arguments of the parties, a look at different provisions in the rules is necessary. Rules 147 to 179 of the Rules deal with debts, and claims against company in liquidation. Rule 163 of the Rules giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Applications Nos. 467 and 473 of 2001. In all the cases, the company judge has exercised jurisdiction under rule 164 of the Rules and decided the matter in two of the cases on Jury 25, 2003, and two other cases on March 18, 2004. It is now contended by the respondents that since this is a second appeal or at best an appeal under Letters Patent, therefore, it is barred. Learned counsel for the appellants, however, submits that reference as an " appeal" to the proceedings under rule 164 is a misnomer and as a matter of fact, the learned company judge was not dealing with an appeal but he was dealing with the proceeding which cannot be termed as an appeal in view of the different provisions of the Companies Act. A reference is made to sections 460(6) and 483 of the Companies Act. Section 460 of the Companies Act deals with exercise and control of liquidator's powers. Sub-section (6) of section 460 of the Act lays down that any person aggrieved by any act or decision of the liquidator may apply to the court, which may confirm, reverse or modify the act or decision complained of, and make such further order as it thinks just in the circumstances. Section 483 of the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an appellate court, asking it to set aside or revise a decision of a sub ordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent." This definition has been consistently followed by the courts in India and by a catena of judgments, it is well-settled that appeal is a statutory right and if appeal is provided by law, the right to appeal follows, and if no such right is provided by a statute, there could not be any appeal In Chautala Workers Co-operative Transport Society Ltd. v. State of Punjab, AIR 1962 Punj. 94, the High Court of Punjab also went into the question and held (page 100) : "An appeal in legal parlance is held to mean the removal of a cause from an inferior or subordinate to a superior Tribunal or forum in order to test and scrutinize the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of the subordinate Tribunal is erroneous and therefore liable to be rectified or set right." In another case reported in State of Gujarat v. Salimbhai Abdulgaffar Shaikh [2003] 8 SCC 50, the Supreme Court almost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows (page 1129) : "15. It is thus clear that the appeal filed by defendants Nos. 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centres around the question whether that appeal was maintainable. On this question the position seems to us well established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite- The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute." Learned counsel for the appellants, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the powers under the Letters Patent. Sections 397 and 398 read with section 483 indicate that the appeal would lie in the same manner to the same court and naturally and logically an appeal from the decision of the single judge would lie to the Division Bench. This in our opinion follows logically from the ratio of decision of this court in Shankarlal Aggarwala v. Shankarlal Poddar [1965] 35 Comp. Cas. 1 , as well as other decisions referred hereinbefore." There is another judgment of this court in State Bank of Hyderabad v. Official Liquidator [1999] 98 Comp. Cas. 679 ; AIR 1999 AP 313. This judgment, in fact, does not support the case of the appellants. In Shiv Shakti Co-operative Housing Society's case ( supra ) there was a comparison made by the High Court on the powers of courts under revision and the appeal. Reference is also given to P. S. Sathappan v. Andhra Bank Ltd., AIR 2004 SC 5152, wherein the recourse to section 100 of the Code of Civil Procedure amendment was considered by the Supreme Court. This judgment, in fact, was against the appellants. Coming to the argument that the appeal under rule 168 is a misnomer and the proceedings before the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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