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TMI Blog2009 (11) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ar with the Official Liquidator. Even by straight calculation this amount of ₹ 6 crores lying deposited with the Official Liquidator, if had not been deposited, would have been used by the respondent No. 3 and it could have at least fetched interest of ₹ 6 lakhs per month in the ordinary course of business. On the contrary the appellant did neither deposit any Earnest Money nor 18 per cent of his offer in violation to the court order which does not portray the picture of a bona fide and higher offerer. In these circumstances we are unable to hold that the appellant has made out any case calling for our interference in the matter. We are also unable to hold that the impugned orders dated 6-5-2009, 19-8-2009 and 8-10-2009 suffer from any illegality and we uphold the same. The appeal fails and is hereby dismissed with cost of ₹ 25,000. Thus company appeal No. 8/09 dismissed with costs of ₹ 25,000 payable by the appellant to the respondent No. 3. - CO. APPEALS NOS. 7 AND 8 OF 2009 IN CO. CASE NO. 12 OF 2004 - - - Dated:- 12-11-2009 - R.S. GARG AND SMT. S.R. WAGHMARE, JJ. N.K. Verma and S.C. Bagadiya for the Appellant. Ashok Chitley and B.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On September 28, 2008, one M/s. Rohan Meta Chem Industries filed intervention application seeking to offer a higher bid of Rs. 17.5 crores for lot No. 1 and Rs. 11.50 crores for lot No. 2, in effect only Rs. 50 lakhs more for each lot than what was offered by respondent No. 3. 5. On May 6, 2009, the company court while considering the applications made by respondent No. 3 as also M/s. Rohan Meta Chem directed them to deposit earnest money of Rs. 6 crores + 18 per cent, of their offer value to show their bona fides inasmuch as they did not respond to the public notice issued on February 25, 2008. 6. The company judge, in our opinion, rightly directed the two interveners to deposit the 18 per cent, money of their respective offers along with the earnest money. 7. From the records it transpires that on August 19, 2009, when the matter came up before the learned company judge, neither on behalf of the appellant of Company Appeal No. 8 of 2009, nor on behalf of M/s. Rohan Meta Chem did anyone appear leaving the learned company judge with no option but to dismiss their applications because it was reported that the order dated May 6, 2009, directing them to deposit EMD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outset Shri A. K. Chitley, learned senior counsel appearing for respondent No. 3, contended, after referring to section 483 of the Companies Act, 1956, that unless a parallel provision of appeal is traceable, an appeal would not lie from the order of the company judge to the Division Bench because the High Court does not have any original jurisdiction. To bolster his submission learned senior counsel contended that unless the High Court possesses original jurisdiction and unless a substantive parallel provision is found which vests the Division Bench with the power of appeal against any decision rendered by the learned single judge in original jurisdiction, the mandate of section 483 providing for an appeal to the same court, in the same manner, and subject to the same conditions, under which an appeal lies from any order or decision within its ordinary original jurisdiction. In support of the said submission it was further contended that the High Court Rules and Orders 2008, Chapter 2 Classification of Cases Rule 1(3) only provides that a company appeal shall be registered as COMA. Further it was contended that under Chapter 4A Civil Matters, rule 2(2) provides that a company appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain general principles regarding interpretation of statutes. In the first place, where a statute provides a right of appeal, such a right is regarded as a statutory right of appeal conferred upon a litigant for mitigating his grievance. In the first place, whenever a statute confers statutory right of appeal, effort should be made to give full effect to such provision creating a right of appeal rather than the effort to take away such a statutory right of appeal. In a situation where the statutory provision conferring right of appeal is unhappily worded or is ambiguous, with regard to the forum, the manner and conditions subject to which an appeal would lie, efforts should always be made to adopt the principle of purposive construction to enable the court to resolve the conflict so as to give full and complete effect to the legislative intent in creating statutory right of appeal. In such situation where the statute is short of appropriate prescription to make it operational, it is the duty of the courts while interpreting the provisions to supply casus omissus to resolve the conflict and for this purpose even the court would be permitted to look outside such enactment creating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as if the preliminary objection of respondent No. 3 is to be upheld then the right of appeal conferred by section 483 would be rendered redundant depriving a litigant of such a statutory right of appeal. The aforesaid observation of the apex court, though made in respect of the right of property, shall apply even to the situation at hand with full force inasmuch as if the preliminary objection of respondent No. 3 were to succeed, it would lead to deprivation of the right of appeal created by the statute. 21. A well known rule of construction is giving effect to all provisions of the statute should be adopted as held in the matter of Sarabjit Rick Singh v. Union of India reported as [2008] 2 SCC 417. The apex court in the matter of New India Assurance Co. Ltd. v. Nusli Neville Wadia [2008] 3 SCC 279, had opined that purposive construction should be preferred to literal construction leading to anomaly or absurdity. 22. In the matter of Sarabjit Rick Singh [2008] 2 SCC 417, the apex court had opined that such interpretation which makes the statute unworkable should be avoided. 23. In the matter of Bihar State of Council of Ayurvedic and Unani Medicine v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appeals were within limitation or barred by limitation" ? When the question of maintainability coupled with the question of limitation was raised the learned judges of the Division Bench referred the matter to a Bench of five judges and the following questions were referred to the larger Bench (page 257 of 11 Comp Cas) : "(1) Does section 12 of the Limitation Act, govern an appeal preferred under section 202, Companies Act, from an order of a single judge exercising original jurisdiction where the forum of appeal (as distinct from the right of appeal) is provided by the Letters Patent, and if so, is the appellant in such cases entitled to exclude the 'time requisite' for obtaining a copy of the judgment appealed against, even though under the rules and orders of the High Court no copy of the judgment is required to be filed with the memorandum of appeal ? (2) Does section 12 of the Limitation Act, govern appeals under the Letters Patent in which not only the forum of appeal, but also the right of appeal is given by the Letters Patent; and is the appellant in such a case entitled to exclude under section 12 the 'time requisite' for obtaining a copy, whether such copy is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 3 did not take any clue from the provisions of the Madhya Pradesh Uchcha Nyayalaya (Khandpith Ko Appeal) Adhiniyam, 2005, as also clause X of the Letters Patent contained in section 4 Chapter 4 (at page 352) of the High Court Rules and Orders by Jindal. 34. A perusal of section 2 of the Adhiniyam, 2005 and clause X of the Letters Patent clearly reveals that against orders passed by a single Bench in the course of original jurisdiction, an appeal is provided to the Division Bench. It would be apt to note that now clause X is controlled by section 100A of the Code of Civil Procedure, 1908 introduced with effect from July 1, 2002, prohibiting an appeal from any appellate decree passed by the learned single judge. We may hasten to add that we may not be understood to have decided anything regarding survival of clause X or its effect as an enabling provision for maintainability of LPAs, etc., but for the limited purpose of taking a clue as regards the forum, the manner and conditions subject to which an appeal is provided under section 483, ibid, (emphasis supplied). After considering the forum, the manner and conditions subject to which, an appeal is provided against orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was submitted that the certified copy was applied for on May 11, 2009 and the copy was delivered on October 9, 2009, similarly the copy of order dated August 19, 2009, was also delivered along with the same copy and regarding the order dated October 8, 2009, the certified copy was applied for on October 9, 2009 and was received on October 12, 2009 and the appeal was filed on October 22, 2009, therefore, even under article 117 the appeal is within limitation, after excluding the time spent in obtaining the certified copy as envisaged by section 12(2) of the Limitation Act, 1963. 38. After considering the rival submission made we are of the considered opinion that the Full Bench judgment in the matter of Punjab Co-operative Bank Ltd., Lahore [1941] 11 Comp. Cas. 254 ; AIR 1941 Lahore 257, is an authority for the proposition that the provisions of section 12 of the Limitation Act would also be attracted and applicable to a company appeal under section 483 which is pari materia to section 202 of the Indian Companies Act, 1913, which was in question before their Lordships. Once we hold that the entire period spent in obtaining the certified copy is excludible, we have no opt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public notice dated February 25, 2008, to ascertain the bona fides and the genuineness of the parties with which they had come to the court. The appellant has furnished his address as Village Agety, Tehsil Nacha in District Patiyala, Punjab. Undisputedly the public notice issued on February 25, 2008, was published in Dainik Bhaskar, Indore and Bhopal edition. It was also published in Punjab Kesri (Hindi edition) having circulation in all the editions in the State of Punjab and Haryana. The public notice was also published in the Economic Times Mumbai, Delhi and Ahmedabad Edition. The public notice was also published in a newspaper called Jagwani (in Gurumukhi language) in all its editions having circulation in entire State of Punjab and Haryana. The public notice was also published in The Tribune (English) all editions in Punjab and Haryana ; all editions in M. P., Nai-Duniya having circulation in Indore, Gwalior, Bhopal, Jabalpur, Bilaspur, Raipur. It was also published in The Hindu all editions, having circulation in Chennai, Coimbatore, Madurai, Tiruchirapaili, Hyderabad, Vijayawada, Trivendram, Bangalore, Mangalore and Delhi. In addition to the above newspapers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 2009, respondent No. 3 deposited the balance consideration of Rs. 22 crores on September 17, 2009 and the possession of the property (lot No. 1) in question was handed over on October 3, 2009. It was further submitted on behalf of respondent No. 3 which has not been disputed, that after obtaining possession of lot No. 1 certain parts of machinery, etc ., have also been removed by respondent No. 3. 44. It is only thereafter that a half hearted and feeble attempt was made by the appellant for recall of order dated August 19, 2009, when all subsequent events had already taken place. 45. In view of the aforesaid undisputed facts floating on surface of record the original offer of Rs. 31 crores, which during the course of this appeal was revised to Rs. 35 crores, does not appeal to us so as to set aside the confirmed sale made by the learned company judge in favour of respondent No. 3. We feel disposed to take note of the fact that the EMD of Rs. 6 cores as deposited by respondent No. 3 on May 8, 2008, was lying for more than a year with the official liquidator. Even by straight calculation this amount of Rs. 6 crores lying deposited with the official liquidator, if had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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