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TMI Blog2009 (12) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Official Liquidator, Uttar Pradesh adjudicating on the 'proof of debts' and proposing to distribute the sale proceeds of the assets of the UP State Cement Corporation Limited (in liquidation) wound up by the Court on 8-12-1999. 3. Shri Ashok Mehta learned counsel appearing for the respondents raised a preliminary objection regarding the maintainability of this Special Appeal under Chapter VIII Rule 5 of the High Court Rules. He submits that the order which has been impugned is an order passed in appellate proceedings before the learned Single Judge under Rule 164 of Rules, 1959 hence both the Letters Patent Appeal as well as appeal under section 483 of the Companies Act, 1956 ('hereinafter called the Act 1956') is barred. Shri Ashok Mehta learned counsel appearing for the respondents contends that the Special Appeal against the order of learned Single Judge passed in appellate jurisdiction, is not maintainable. He contends that under Chapter VIII Rule 5 of the High Court Rules the Special Appeal is barred against an order passed by learned Single Judge in exercise of appellate jurisdiction. He submits that appeal under section 483 of the Companies Act also cannot be ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de jurisdiction vested in the Court by special statutes as distinguished from the statutes constituting the Court. Undoubtedly, in the case of a High Court the limits of whose jurisdiction are governed by its Letters Patent, the Letters Patent would determine what the 'ordinary jurisdiction' is. But that Letters Patent is not immutable and has been the subject of several alterations. Thus when the Companies Act was passed in 1913, an appeal lay from every 'judgment' of a Single Judge of the High Court. But in March, 1919 it was amended so as to exclude the rights of appeal from judgment passed in exercise of revisional jurisdiction and in exercise of the power of superintendence under section 107 of the Government of India Act, 1915. There can be no doubt either that the exercise of revisional or supervisory jurisdiction is as much 'ordinary jurisdiction' of the High Court as its original or appellate jurisdiction and it cannot be that there has been any alteration in the law as regards the appealability of decisions of a High Court under section 202 of the Companies Act by reason of the amendment of the Letters Patent. Again, the Letters Patent were amended in January, 1928 when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is quoted below : "6. The Court further held that there was nothing in section 483 of the Companies Act, 1956, which took away or curtailed the right of appeal provided by section 5(1) of the Delhi High Court Act, 1966, and clause 10 of the Letters Patent (Punjab) as applicable to the Delhi High Court; and that the jurisdiction conferred on the Company Judge of the High Court under section 10 of the Companies Act was none other than its ordinary civil jurisdiction and appeal lay also under clause 10 of the Letters Patent to a Division Bench from the order of the Company Judge. 7. In this case in the High Court of Gauhati, however, unlike the Bombay High Court or the Calcutta High Court or the Delhi High Court, no Letters Patent was applicable to the Gauhati High Court. It was, therefore, held that there was no provision for an appeal to the judgment of the learned Single Judge of the High Court. In our opinion the decision in Shankerlal Aggarwala v. Shankarlal Poddar AIR 1965 SC 507 of this Court indicated the true position where this Court held in section 202 of the Companies Act, 1913 was in pari materia with the present section. This Court preferred the view of the Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench judgment of the Bombay High Court in Maharashtra Power Development Corpn. Ltd.'s case (supra) was a case where the Company Law Board had passed an order against which an appeal was filed before the learned Single Judge under section 10F of the Companies Act. Learned Single Judge decided the appeal against which an appeal was filed before the Division Bench under section 483 of the Companies Act. Before the Division Bench of the Bombay High Court, reliance was placed under section 100A CPC which was amended with effect from July, 2002 excluding certain appeals. The Division Bench of the Bombay High Court relying on section 4 CPC held that appeal was not barred. Following was laid down in paragraphs 22 and 23 of the judgment which is quoted below: "22. We are also not inclined to accept that section 100A of the Code of Civil Procedure is the specific provision to the contrary within the meaning of section 4(1) of the said Code which limits or otherwise affects the right of appeal provided under section 483 of the Companies Act which would be the special law applicable. Firstly, what section 100A bars is an appeal from the judgment and decree of a Single Judge. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that section 104 did not bar a Letters Patent. As Appeals under 'any other law for the time being in force' undeniably include a Letters Patent Appeal, such appeal are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However, when section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in section 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that section 4 of the Civil Procedure Code provides as follows : '4. Savings. -(1) 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 under any other law for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, no further appeal shall lie from the judgment and decree of such Single Judge.' To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither section 100A nor section 104(2) barred a Letters Patent Appeal. 67. Once, however, a right of appeal either in terms of sub-section (1) of section 104 or Letters Patent is availed of, there would not be any further right of appeal from the appellate order in view of sub-section (2) of section 104, for the simple reason, that Letters Patent also provides for only one appeal, i.e., from a single Judge of a High Court to a Division Bench. It may be true that in certain cases, Letters Patent Appeals are available even from an appellate order passed by a learned Single Judge of the High Court to a Division Bench but the same was permissible only when there was no bar thereto and subject to the condition laid down in clause 15 itself. We may notice that when a first appeal or second appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Kamal Kumar Dutta v. Ruby General Hospital Ltd. [2006] 70 SCL 222 . 14.1 In the above case, a petition under sections 397 and 398 of the Companies Act was filed before the Company Law Board. Company Law Board issued several directions on 29-10-1999. Against which an appeal was filed before the learned Company Judge under section 10F of the Companies Act. Learned Company Judge allowed the appeal. Learned Single Judge set aside the order of the Company Law Board against which order of the learned Single Judge, Special Leave to Appeal was filed in the Apex Court. One of the preliminary objection was raised before the Apex Court that the appellant had a right of appeal under clause 15 of the Letters Patent Appeal before the High Court, hence the appeal before the Supreme Court be not entertained. In the above context, the Apex Court examined the preliminary objection. The Apex Court noticed both the contentions that the appeal before the Division Bench shall lie under section 483 of the Companies Act as well as clause 15 of the Letters Patent Appeal. Following was laid down in paragraph 23 which is quoted below: "23. Therefore, where appeal has been decided from an original order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Bombay High Court in Maharashtra Power Development Corpn. Ltd.'s case (supra ) on which the learned counsel for the appellant has placed reliance was specifically considered by the Apex Court in the case of Kamal Kumar Dutta (supra). In paragraph 25 it was laid down that the said judgment does not lay down the correct law. Following was laid down in paragraph 25 which is quoted below: "25. In this connection, our attention was invited to a decision of the Bombay High Court in Maharashtra Power Development Corpn. Ltd. v. Dabhol Power Co. [2004] 50 SCL 440 . In that case, the High Court took the view that despite the amendment in section 100A of the Code of Civil Procedure, order passed by the Single Judge in appeal arising out of the order passed by CLB under sections 397 and 398 of the Act, appeal lay to the Division Bench and in that connection, the Division Bench invoked section 4(1) of the Code of Civil Procedure which says that 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 p ..... 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