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TMI Blog2019 (10) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... ng winding up petition at Allahabad and holding that Defaulting Company/Appellant is unable to pay its debts, hence it is just and equitable to wind up the same and consequently directing for winding up of Company and appointing Official Liquidator as Liquidator of Company. The jurisdictional issue raised is that winding up petition was within the jurisdiction of Judges sitting at Lucknow and not at Allahabad, therefore, there is an inherent lack of jurisdiction in respect of subject matter of winding up, hence, order of winding up is illegal and void, but this objection has been rejected by learned Single Judge. Learned Single Judge has also restrained Defaulting Company/Appellant from transferring, alienating and encumbering any assets of Company and Official Liquidator has been directed to take over possession of assets of Company. 2. Facts in brief giving rise to present appeal are, that, Defaulting Company/Appellant, a Public Limited Company, was incorporated in October 1978 under the provisions of Act, 1956. Certificate of registration was issued by Registrar of Companies, Kanpur. Its Registered Office is at A/2, Site No.2, Industrial Area, Rai Bareilly. Company could not ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Institution i.e. Syndicate Bank, respondent 5, initiated recovery proceedings before Debt Recovery Tribunal (hereinafter referred to as "DRT") in T.A.No.165 of 2002 and 261 of 2002. 7. Respondent 4 i.e. IIBI also initiated recovery proceedings, filed Original Application No.05 of 2003 in DRT, Lucknow for recovery of Rs. 58469876/-. 8. Learned Company Judge, in modification of earlier order dated 07.08.2000, whereby schedule of repayment was sanctioned, passed order dated 15.10.2003, but nothing could proceed further since factory premises was attached by District Magistrate, Rae Bareilly for effecting recovery of tax dues under recovery certificate issued by Trade Tax Authorities against Defaulting Company/Appellant. 9. Company Judge on an application of Defaulting Company/Appellant, passed an order on 11.11.2003 and clarified its order dated 15.10.2003 whereupon Company approached State Government who decided to withdraw Recovery Certificate issued by Tax Authorities. Consequently, District Magistrate revoked attachment of factory premises on 21.01.2004. 10. Defaulting Company/Appellant giving an impression that it wants to comply Company Judge's order dated 15.10.2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 4-A of Act, 1956. Under Assignment Deed dated 28.04.2011, IIBI assigned and transferred the deeds and documents guaranteed together with all underlying securities, interest thereto and all its rights, title and interest in all agreements, deeds, documents and benefits etc. to M/s IFCI Ltd. Therefore, vide order dated 02.04.2012 substitution was allowed and M/s IIBI stood substituted by M/s IFCI Ltd. i.e. respondent 4. 15. Respondent 2 i.e. PICUP has filed a short counter affidavit stating that Defaulting Company/Appellant has been lingering proceedings not only before BIFR, but even before this Court for more than one and half decade. PICUP and other respondents accepted OTS-cum-Rehabilitation Scheme in pursuance whereof Defaulting Company/Appellant was to pay Rs. 82,15,000/- to PICUP, but it could pay only Rs. 10,31,257/- and Rs. 71,83,673/- remained unpaid, which became Rs. 1,41,73,000/- with interest as on 31st October, 2007. This shows that Defaulting Company/Appellant committed default despite Creditors having agreed for OTS-cum-Rehabilitation Scheme. Defaulting Company/Appellant could not discharge its own part of duty towards payment. Defaulting Company/Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by order dated 15.10.2003, but even then it was not complied with though Bank's suit i.e. T.A. no.261 of 2002 before DRT was disposed of in terms of this Court's order dated 15.10.2003, vide order dated 28.07.2005. Defaulting Company/Appellant having no intention to comply orders, in a mischievous way, filed Writ Petition No.2895 of 2006 (M/S) before Lucknow Bench in which an interim order was passed by learned Single Judge (Hon'ble Rakesh Sharma, J) on 12.06.2006 staying order of DRT passed in Case No.TA 261 of 2002 and also restraining all opposite parties therein from taking any coercive action against Defaulting Company/Appellant during pendency of that writ petition. Further, on an application moved by Bank for recall of order dated 15.10.2003, this Court (Hon'ble S. U. Khan, J) passed order on 05.04.2007 recalling order dated 15.10.2003, making a clear observation that perusal of different orders starting from 07.08.2000 to 09.02.2007 show that Defaulting Company/Appellant has got absolutely no intention of paying any amount. Application of Defaulting Company/Appellant of raising issue of jurisdiction lacks bonafide and even otherwise after eight years, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lack of territorial jurisdiction the order would be void. Placing reliance on Supreme Court's judgment in Sri Nasiruddin vs. State Transport Appellate Tribunal, 1975(2) SCC 671, Manju Verma (Dr.) Vs State of U. P. and others, 2005 (1) SCC 73, and Division Bench judgment of this Court in Registrar of Companies, U. P. and Uttranchal, Kanpur vs. M/s Kamal Infosys Ltd. And others (supra) and Sumac International Services Limited vs. P.N.B. Capital Services Limited, AIR 1997 (Allahabad) 424, he submitted that learned Company Judge has erred in law in rejecting application submitted by Defaulting Company/Appellant raising objection in regard of jurisdiction, therefore, judgment of learned Single Judge is erroneous, illegal and without jurisdiction, hence, liable to be set aside. He further contended that even on merits, learned Single Judge has mechanically followed opinion of BIFR instead of applying its own mind, therefore, order of winding up is illegal and liable to be set aside. In support thereof, reliance is placed on Supreme Court's judgment in V. R. Ramaraju Vs. Union of India and others, 1997 (3) C.L.J. 221 (SC) and a Single Judge Judgment of this Court in Cawnpore Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to such belated objection reliance is placed on Supreme Court's judgments in R.S.D.V. Finance Company Private Limited vs. Shree Vallabh Glass Works Limited, 1993 (2) SCC 130; Om Prakash Agarwal (since deceased) through legal heirs and others Vs. Vishan Dayal Rajpoot and another, 2019 (Allahbad Civil Journal) 3 (SC) and Competition Commission of India vs. Bharti Airtel Limited and others, 2019 (2) SCC 521. 21. We have considered rival submissions of parties, perused record and also relevant authorities and statutory provisions, very carefully, and looked into entire matter in depth. 22. In support of submissions with respect to jurisdiction learned Senior Counsel has placed reliance on Supreme Court's judgment in Sri Nasirruddin (supra) at length and also historical backdrop of Courts at Lucknow and Allahabad, which ultimately resulted in amalgamation and functioning of High Court at Lucknow and Allahabad. 23. Submissions advanced by learned Senior Counsel of respective parties, in our view give rise to following issues :- (I) Whether "Permanent Seat" and "Principal Seat" is one and the same thing and can it be said that there is no "Permanent Seat" as well as "Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In our view, it is high time when this aspect needs be considered threadbare so as to settle dispute for all times to come, to mitigate rivalry among two sections of officers of this Court practising at these two places and also in the interest of litigants at large. 26. For history, development and growth of Courts, including High Court, it is not necessary to go into Moghal system of dispensation of justice, instead it will be appropriate to have a brief re-look from the stage of growth of power of Britishers, firstly with East India Company and thereafter, British Government. In fact at the time of independence we had the system of administration of justice as developed by Britishers and we have maintained that inheritance with some changes as found necessary in the light of the provisions of Constitution of India which came into force on 26th January 1950. For having a retrospect of historical development of judicial system initiated and developed by Britishers, fortunately we have information in the form of publication of certain official momentos by this Court in recently concluded "Sesquicentennial functions" on completion of 150 years of establishment of this Court. Enou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny' established a Mayor's Court at Madras. It consisted of twelve Aldermen and sixty or more Burgess. After settlement of Calcutta founded by Job Charnoc in 1690 there was gradual increase of British population in India. A necessity was felt for having Courts which may dispense justice to Britishers in accordance with English law. There was diverse legal frameworks working in British settlements. Charter of 1726, therefore, came to be issued providing for establishment of 'Corporation' in each presidency town. It also established 'Mayor Court' at all three presidencies i.e. Madras, Calcutta and Bombay. These Courts were having jurisdiction in civil matters including 'Testamentary' and 'Probate Wills' but criminal matters were left to be decided by and within the jurisdiction of Governorin- Council which acted as Court in such matters. It also made a provision for Second Appeal to King and Council. Under this Charter, First Appeal could be filed before Governor and Council, and Second Appeal could be taken to King and Council in England. These Courts administered English law which was assumed to be 'lex loci' of the settlement. Inhabit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Judges of Dewani Adalats were appointed as Magistrates with power to take cognizance of offences, apprehend their perpetrators and commit them to nearest Criminal Court for trial. Interestingly, these English Magistrates had no effective role over Zamindars and Landholders. On 27.06.1787, Magistrates were vested with authority to decide, upon complaints, petty offences such as petty affrays, abusive names etc. 36. On 03.12.1790, Regulations were passed whereby 'Courts of Circuit' under superintendence of English Judges, assisted by persons well versed in Mohammedan Law, were established for trying, in the first instance, cases of crimes and misdemeanours. Regulations with regard to Criminal Courts were consolidated and re-enacted in Regulation IX of 1793. Revenue Adminstration 37. Revenue Administration owed its origin to the grant of Dewani whereby 'East India Company' had become responsible for collection of Revenue in view of grant, it held, from the then Moghal Emperor. Prior to 1771, task of settlement and collection of Revenue was carried by covenanted servants of East India Company in Calcutta, Twenty-four Parganas, Burdwan, Midnapore and Chittagong. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction was established in the city of Banaras. In 1788, Courts with similar powers were established in districts of Ghazipur, Jaunpur and Mirzapur. Resident at Banaras was to act as Magistrate throughout the Province of Banaras. By Regulation XVI of 1795, Judges of Dewani Adalats, which were established in the same year in the city of Banaras and above mentioned three districts, were empowered to act as Magistrates within their jurisdiction and this power which was being exercised by Resident at Banaras was resumed from him. 'Court of Circuit' having similar powers as those in Bengal for trial of serious offences, was created by same Regulations in Banaras. This Court was subordinate to 'Sadar Nizamat Adalat' of Bengal. 42. Regulation VII of 1795 caused establishment of 'Civil Courts' in Banaras Province. City court in Banaras and three Zillah Courts (District Courts) in Jaunpur, Mirzapur and Ghazipur were established. The jurisdiction, power and authority enjoyed by similar courts in Bengal were extended to these courts also. By Regulation IX of 1795, a Provincial Court of Appeal was set up in Banaras to exercise jurisdiction in Banaras Province, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appeals against decisions of Provincial Courts of appeal was admissible in 'Sadar Dewani Adalat of Bengal'. Out of the territories ceded by Peshwa and Daulat Rao Sindhia, six Districts were formed by Regulation IX of 1804. 45. By Regulation VIII of 1805 five new Districts were formed out of conquered provinces, within the Doab and on the right bank of Jamuna, excepting Delhi, as also out of the territory of Bundelkhand ceded by the Peshwa. These districts were Aligarh (at that time Allyghur), Northern Zilla of Saharanpur, Southern Zilla of Saharanpur, Agra and Bundelkhand. By same Regulations, Zilla Courts/District Courts were established in these districts. Two parts of Saharanpur, however, were amalgamated in 1806. Appeals from these Zilla Courts/District Courts, lay to Provincial Court established by Regulation IV of 1803 and further appeals to Sadar Dewani Adalat of Bengal. 46. In 1817, Dehardun and Kumaon, which were acquired from Nepal, were brought under above legal system vide Regulations IV and X. Some defects were found in superintendence of Criminal and Revenue Administration, hence nine Divisions were created in 1829, out of the ceded and conquered territori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of Presidencies of Fort William in Bengal were divided in two and another Presidency was constituted as 'Presidency of Agra'. Power to divide territories in the newly constituted Presidencies vis-à-vis existing Presidency was conferred upon Board of Directors of 'East India Company'. 51. In 1836, 'North-Western Provinces' was formed out of the territory around Banaras ceded by Oudh/Avadh in 1775, other territories ceded in 1801, conquered territories acquired from Maharaja of Sindhia in 1803, a portion of Bundelkhand acquired from Peshwa and territory then known as the hill districts acquired in 1816 from Nepal. The ceded territories covered greater portion of Uttar Pradesh. Sagar and Narbada territories ceded by Rulers of Nagpur, also became part of 'North Western Provinces'. 52. Jhansi which lapsed to East India Company in 1853, became part of North Western Province. Delhi territory which also formed part of the North Western Provinces, later transferred to Punjab in 1858. In January 1858, Lord Canning proceeded to Allahabad forming 'North Western Province' excluding Delhi Division. 53. Avadh/Oudh was annexed to territorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in 1856 with a Judicial Commissioner. Initially there was only one Judicial Commissioner but he was not the highest Court of Appeal in rent and revenue cases. System of dispensation of justice in Oudh/Avadh was different for the reason that Regulations of Bengal did not apply to Oudh/Avadh. Hence like other Non Regulation Provinces, it also remained None Regulation Territory. 58. After annexation in 1856, various grades of posts were established vide Act XIV of 1865, similar to those provided for Central Provinces under the same Act. The aforesaid Act was framed chiefly with reference to Central Province. It was found incomplete and inconvenient as regards Oudh/Avadh. 59. Accordingly, in 1871, Oudh Civil Courts Act (Act No.XXXII of 1871) was passed by Governor General-in-Council to consolidate and amend laws relating to Civil Courts in Avadh. Besides constituting Civil Courts in a reformed shape, Judicial Commissioner's Court was reconstituted as the highest Court. Five grades of Courts were constituted i.e. (1) Tehsildar (2) Assistant or Extra Assistant Commissioner (3) Deputy Commissioner or Civil Judge of Lucknow (4) Commissioner and (5) Judicial Commissioner. General co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in Oudh/Avadh : (i) Court of Judicial Commissioner (ii) Court of District Judge (iii) Court of Subordinate Judge (iv) Court of Munsif 64. Since, work was on increase, by subsequent enactments i.e. Act IV of 1885, power was given to make temporary appointments and thereafter by Act XIV of 1891, Oudh Courts Act, provision was made for appointment of permanent 'Additional Judicial Commissioner', equal in status but not in emoluments to 'Judicial Commissioner'. By Act XVI of 1897, provision was made for Second Additional Judicial Commissioner but salary between Judicial Commissioner and Additional Judicial Commissioner remained different i.e. Rs. 3500/- per mensem to Judicial Commissioner and Rs. 3333/- per mensem to Additional Judicial Commissioner. 65. Thereafter in 1902, new name to two Provinces was given i.e. "United Province of Agra and Oudh". It became 'Uttar Pradesh' on 24.01.1950 under United Provinces (Alteration of Name) Order, 1950 (hereinafter referred to as "Order 1950"). 66. With an intention to provide larger power in provincial matters to the Provinces, G.I. Act, 1915-1919 was enacted. We are confining ourselves to the part of afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1919 on 16.05.1925. Preamble of U. P. Act, 1925 stated that it was enacted to amend and consolidate the laws relating to the Courts in Oudh. Section 3 of Act, 1925 provided that on and from commencement of said Act there shall be established for Oudh a 'Chief Court' referred to as "Chief Court". 70. Section 4 of Act, 1925 talked of constitution of Chief Court and provides that "Chief Court" shall consist of a Chief Judge and four or more Judges who shall be appointed by Governor General-in-Council. The Judges including 'Chief Judge' were to be appointed from three sources namely :- "(a) Barristers, Advocates and Vakils of a High or Chief Court including the former Judicial Commissioner's Court in Oudh of not less than ten years' standing; at least two. (b) Members of the Indian Civil Service of not less than ten years' standing, and having for at least three years served as, or exercised the powers of, a District Judge; at least two. (c) Members of the United Provinces Civil Service who have held judicial office not inferior to that of a Subordinate Judge or a Judge of a Small Cause Court for a period of not less than five years; at least one." 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve power to British Crown to constitute a High Court by Letters Patent for any Province or any part thereof or reconstitute, in like manner, any existing High Court for that Province or for any part thereof or where there are two High Courts in that Province, amalgamate that Courts. Section 229 reads as under : "229.-(1) His Majesty, if the Chamber or Chambers of the Legislature of any Province present an address in that behalf to the Governor of the Province for submission to His Majesty, may by letters patent constitute a High Court for that Province or any part thereof or reconstitute in like manner any existing High Court for that Province or for any part thereof, or, where there are two High Courts in that Province, amalgamate those courts. (2) Where any Court is reconstituted, or two Courts are amalgamated, as aforesaid, the letters patent shall provide for the continuance in their respective offices of the existing judges, officers and servants of the Court or Courts, and for the carrying on before the reconstituted Court or the new Court of all pending matters, and may contain such other provisions as may appear to His Majesty to be necessary by reason of the reconstitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of their respective appointments in their capacity and thereafter, former Puisne Judges of Chief Court in Oudh/Avadh according to the priority of their respective appointments shall be placed. 78. Article/Clause 5 (3) of U. P. High Courts (Amalgamation) Order, 1948, provided an order of Additional and Acting Judges according to priority of their respective appointments in either of the existing High Courts. All existing staff i.e. Officers and servants of existing High Courts were declared as deemed to have been appointed in corresponding position in the "New High Court", on the same terms and conditions. 79. Article/Clause 7 of U. P. High Courts (Amalgamation) Order, 1948, provided jurisdiction of "New High Court" and reads as under : "7.(1) The new High Court shall have, in respect of the whole of the United Provinces, all such original , appellate and other jurisdiction as, under the law in force immediately before the appointed day is excercisable in respect of any part of that Province by either of the existing High Courts. (2) The new High Court shall also have in respect of any area outside the United Provinces all such original, appellate and other jurisdiction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly that hiogh Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court in Allahabad: Provided that any rules or orders which are in force immediately before the appointed ay with respect to practice and procedure in the High Court in Allahabad shall, until varied or revoked by rules or orders made for the new High Court, apply with the necessary modifications in relation to practice and procedure in the new High Court as if made by that Court: Provided further the Chief Justice may, in his discretion order that any rules or orders which were in force immediately before the appointed day with respect to practice and procedure in the Chief Court in Oudh shall, until varied or revoked by new rules or orders made for the new High Court, apply with the necessary modifications in relation to practice and procedure in the new High Court sitting at Lucknow." (emphasis added) 83. In respect of Subordinate Courts, Article/Clause 10 of Order, 1948, provided that until varied or revoked, the existing provisions made in respect of High Courts will continue to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than two in nubmer, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow, in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court. Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad." (emphasis added) 89. Article/Clause 15 of U. P. High Courts (Amalgamation) Order, 1948, applied laws in respect of appeals to His Majesty in Council or to Federal Court from High Court in Allahabad to be applied to "New High Court". 90. Article/Clause 16 of U. P. High Courts (Amalgamation) Order, 1948, made a declaration that all proceedings before "appointed day" in either of the existing High Courts shall stand transferred to "New High Court" and shall continue as if they had been proceedings instituted in that High Court. 91. By virtue of Article/Clause 17 of U. P. High Courts (Amalgamation) Order, 1948, Letters Patent dated 17.03.1866 whereby 'High Court of Judicature for North Western Provinces' was established and Chapter II of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948, shows that general provision in respect of sitting of "New High Court" is at Allahabad or such other places in the United Provinces as the Chief Justice with approval of Governor of United Provinces, appoints. First proviso, however, makes an exception in respect of Lucknow. It provides that unless Governor of United Provinces, in concurrence with the Chief Justice, otherwise directs, such Judges of "New High Court" but not less than two, as nominated by Chief Justice, would sit at Lucknow and exercise jurisdiction in respect of cases arising in such areas in Oudh/Avadh as Chief Justice may direct, the jurisdiction and power vested in "New High Court". 94. Therefore, Article/Clause 14, First Proviso of U. P. High Courts (Amalgamation) Order, 1948, provides, while declaring that sitting of "New High Court" would be at Allahabad and Judges and Division Courts thereof shall sit thereat but in respect of cases arising in such areas of Oudh/Avadh, as Chief Justice may direct, at least two Judges as nominated by Chief Justice shall sit at Lucknow and exercise jurisdiction of "New High Court" thereat. The number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What is the meaning of the expression "in respect of cases arising in such areas in Oudh" used in first proviso to Article 14 of the High Court (Amalgamation) Order, 1948? Has this expression reference to the place where the case originated or to the place of the sitting of the last court or authority whose decree or order is being challenged in the proceedings before the High Court? (5) Whether this writ petition can be entertained, heard and decided by the Judges sitting at Lucknow?" 98. Above questions were answered by Larger Bench as under : "(1) A case falling within the jurisdiction of judges at Lucknow should be presented at Lucknow and not at Allahabad. (2) However, if such a case is presented at Allahabad, the judges at Allahabad cannot summarily dismiss it only for that reason. The case should be returned for filing before the judges at Lucknow and where the case has been mistakenly or inadvertently entertained at Allahabad, a direction should be made to the High Court office to transmit the papers of the case to Lucknow. (3) A case pertaining to the jurisdiction of the judges at Lucknow and presented before the judges at Allahabad cannot be decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arisen in an area outside the jurisdiction of Judges sitting at Lucknow, then writ petition under Article 226 would lie in the High Court depending on original area where cause of action has arisen and not because appellate or revisional order was passed by authority sitting in jurisdiction of Judges at Lucknow. These parts of findings were not found correct by Supreme Court. In para 27 of judgment in Sri Nasiruddin (supra), Court held that reasoning of High Court that 'permanent' seat is at Allahabad is not sound. Court said that word "or" cannot be read as "and". In para 29 of judgment, construing Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948, Court said :- "29. The Order describes the High Court as the new High Court. The two High Courts have amalgamated in the new High Court. The seat is at Allahabad or at such other places as may be determined. There is no permanence attached to Allahabad. If that were the intention of the Order, the word "and" instead of the word "or" would have been used. Other places may be determined by the Chief Justice in consultation with the Governor. It is left to prudence of the authorities mentioned as to what other pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition questioning constitutionality thereof can be filed in any High Court of the country. However, it is not correct for the reason that the cause of action will arise only when provisions of Act or some of them which are implemented shall give rise to civil or evil consequences of a party for the reason that Writ Court would not determine a constitutional question in vaccum. Court must have requisite territorial jurisdiction and an order passed on a writ petition questioning constitutionality of a Parliamentary Act will have effect throughout the territory of India subject to the course of applicability of act. The mere fact that seat of Union of India is at Delhi, would not confer a territorial jurisdiction to High Court at Delhi to entertain writ petition questioning constitutionality of Parliamentary Act. Referring to Supreme Court judgment in Nasiruddin (supra) and U. P. Rashtriya Chinni Mill (supra), Court said in paras 25, 26, 27 as under : "25. The said decision is an authority for the proposition that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y said that Lucknow is the seat of Government and Allahabad has history of having High Court there, before U. P. High Courts (Amalgamation) Order, 1948. Further, Lucknow was principal place of Oudh/Avadh. U. P. High Courts (Amalgamation) Order, 1948 aimed to give status to Oudh Chief Commissioner's Court as that of High Court. Court said that it is difficult to foresee what will happen in future whether authorities will change location to other places but from reading of Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 it is clear that there is no idea of 'Permanent Seat'. The aforesaid observations make it very clear that findings of this Court that Allahabad is the 'Permanent Seat' of "New High Court" as per U. P. High Courts (Amalgamation) Order, 1948 and in particular Article/Clause 14 was not found correct, as no such 'permanence of seat', has been stated in U. P. High Courts (Amalgamation) Order, 1948, but there is no discussion or reference in the context of 'Principal Seat' of "New High Court", since that was not an issue before Supreme Court. 103. The concept of 'Principal Seat' of High Court has arisen subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction; the person from whom an agent's responsibility is derived; 'Principal' means highest in rank, authority, character, importance, or degree; most considerable or important; chief; main (as) the principal officers of a government, the principal men of a state, the principal productions of a country, the principal arguments in a case." Meaning of "Permanent" (1) P Ramanatha Aiyar's The Law Lexicon, The Encyclopaedic Law Dictionary, Fourth Edition, Page-1412 :- "Permanent-'Permanent' is defined to mean not temporary, or subject to change; abiding, remaining fixed, or enduring in character, state or place; the meaning of the word 'permanent' according to the lexicographers, is continuing in the same state, or without any change that destroys form or character,remaining unaltered or unremoved, abiding, durable, fixed, lasting, continuing; as a permanent impression, permanent institution" (2) Collins Cobuild Advanced Learner's English Dictionary, Fourth Edition, Page-1067 :- "Permanent-something that is permanent lasts for ever; 'permanent' is used to describe situations or states that keep occurring or which seems to exist all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order, 1948 is a 'Permanent Seat' of this Court, but it cannot be doubted that seat at Allahabad is 'Principal Seat' of "New High Court" which came into existence as a result of amalgamation, under U. P. High Courts (Amalgamation) Order, 1948. 108. To bring the facts straight, we may also notice that now "New High Court" as it was under the provisions of U. P. High Courts (Amalgamation) Order, 1948, has been declared again as 'High Court of Judicature at Allahabad' as High Court for State of U. P. vide Section 26 of Uttar Pradesh Reorganisation Act, 2000 (hereinafter referred to as "Act, 2000"), which reads as under : "26. High Court of Uttranchal.-(1) As from the appointed day, there shall be a separate High Court for the State of Uttaranchal (hereinafter referred to as "the High Court of Uttaranchal") and the High Court of Judicature at Allahabad shall become the High Court for the State of Uttar Pradesh (hereinafter referred to as the High Court at Allahabad)." (emphasis added) 109. Under Section 3 of Act 2000 from the "appointed day" i.e. 9th October, 2000, State of Uttar Pradesh comprised of territories other than those specified in Section 3 of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Oudh remains unaltered." (emphasis added) 112. Supreme Court also said that for exercise of power with respect to territorial jurisdiction in the matters to be taken by Judges sitting at Lucknow, first part of Section 14 of General Clauses Act, 1897 (hereinafter referred to as "Act, 1897") shall have no application and second part of first proviso of Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 shows that power therein is not to be exercised from time to time but only once. Relevant observations read as under : "The second part of the first proviso to paragraph 14 shows that such areas in Oudh as the Chief Justice may direct are areas in respect of which once such direction is given, there is no intention in the Order to exercise such power of direction from time to time." (emphasis added) 113. Supreme Court, therefore, reversed findings of this Court that areas in Oudh/Avadh can be increased or decreased by Chief Justice from time to time. Court said that it is only if Lucknow ceased to be the seat of High Court when otherwise direction is given by Governor in concurrence with the Chief Justice as provided in first proviso to Article/Clause 14 of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class of cases arising in Oudh areas shall be heard at Allahabad. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice be directed to be heard at Allahabad. The cases which are yet to be filed and have jurisdiction before Judges sitting at Lucknow in respect thereof power under second proviso to Clause 14 of Order 1948, cannot be exercised by Chief Justice. (4) If cause of action wholly or partly has arisen within Oudh area, then Lucknow Bench will have jurisdiction. Where cause of action in part has arisen in specified Oudh areas and part outside the Oudh area, it will be open to litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. (5) A criminal case arose when offence has been committed or otherwise has been provided in Cr.P.C. that will attract jurisdiction of Court at Allahad and Lucknow in some cases depending on the facts and provisions regarding jurisdiction. It may arise in either place." (emphasis added) 116. Subject to above directions and reversing findings of this Court, Supreme Court held that answers given to first three questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting High Courts, to include Chief Court of Oudh also. This status conferred upon Chief Court of Oudh as a 'High Court' came to be recognized vide U. P. High Courts (Amalgamation) Order, 1948 wherein Chief Court of Oudh at Lucknow and High Court of Judicature at Allahabad, both were termed as 'existing High Courts' and on amalgamation gave rise to a New High Court i.e. 'High Court of Judicature at Allahabad'. However, Chief Justice of Allahabad High Court became Chief Justice of New High Court and Chief Judge of Avadh/Oudh became one of the Judges though as per his priority, he was placed above other Puisne Judges of High Court of Judicature at Allahabad. Superintendence of New High Court by Chief Justice, who was sitting at Allahabad at that time, continued with him. 120. The entire discussions made above at the pain of repetition leads an undoubted inference that New High Court created by U. P. High Courts (Amalgamation) Order, 1948 did not declare any 'Permanent Seat' of New High Court, but considering the fact that Chief Justice of High Court of Judicature at Allahabad i.e. existing High Court became Chief Justice of New High Court also, we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters covered by these provisions subject to the modifications hereinafter mentioned : The whole of Chapter IV. The whole of Chapter V. The whole of Chapter VI. The whole of Chapter VII. The whole of Chapter IX. Rules 7, 10, 111 and 12 of Chapter XII. Rule 2 (e) of Chapter XIII. The whole of Chapter XVI. The whole of Chapter XVII. Rules 1 to 9 of Chapter XVIII. Rule 7 of Chapter XX. The whole of Chapter XXII. The whole of Chapter XXIII. Appendices 12 and 13. Rules made under the Indian Companies Act (VII of 1913) Modifications - 1. References to the Chief Judge in these provisions shall be construed as references to the senior Judge at Lucknow. 2. References to the Registrar in those provisions shall include references to the Deputy Registrar at Lucknow." (emphasis added) 124. Another Notification is dated 15.07.1949 which was issued in purported exercise of power under Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 and it reads as under :- "No.8427/Ib-39-49.-In exercise of the powers conferred by Article 14 of the United Provinces High Courts (Amalgamation) Order, 1948, and in partial modification of the Court's noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dded) 126. In respect of company matters jurisdiction conferred upon Judges sitting at Lucknow by Notification dated 15.07.1949 was taken away by Notification dated 02.07.1954. This situation continued upto 04.08.1975. 127. A deviation was made by Notification dated 05.08.1975 and thereby jurisdiction was again given to Judges sitting at Lucknow in the matter of Act, 1956. To entertain winding up petitions i.e. upto the stage of proceedings under Section 439 of Act, 1956 jurisdiction was given to Judges sitting at Lucknow but it was clearly provided that subsequent proceedings will be heard at Allahabad. Notification dated 05.08.1975 reads as under : "WHEREAS by notification No.8427/Ib-39-49.-dated the 15th of July, 1949, the Lucknow Bench fo the High Court of Judicature at Allahabad was not to exercise the jurisdiction and power of the High Court in respect of cases arising in the areas of erstwhile Oudh under the following Acts and those cases were to the heard at Allahabad. (1) The Indian Divorce Act, 1869 (Act IV of 1869). (2) The Special Marriage Act, 1872 (Act III of 1872). (3) The Indian Succession Act, 1925 (Act XXXIX of 1925) (4)The Indian Matrimonial Causes (W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad. PROVIDED FUTHER that this notification shall not affect the operation of notification No.5877/Ib-39, dated April 18, 1973 and notifications dated May 1, 1973 and December 21, 1974 which shall continue to remain in force." (emphasis added) 128. Thus, vide Notification dated 05.08.1975, Chief Justice restored jurisdiction to Judges sitting at Lucknow to entertain winding up matters under Act, 1956 upto the stage of proceedings under Section 439, but thereafter subsequent proceedings will have to be heard at Allahabad. 129. A Division Bench of this Court in Sumac International Limited v. M/s PNB Capital Services Ltd, AIR 1997 Allahabad 424 decided on 2nd July, 1997, held that institution of winding up petition of a company having its registered office within territorial jurisdiction of Judges sitting at Lucknow, at Allahabad is valid, since Judges sitting at Lucknow have no jurisdiction in view of Notification dated 15.07.1949. Apparently, Court did not consider that by Notification dated 05.08.1975 earlier Notification dated 15.07.1949 and 02.07.1954 were modified to the extent that winding up petition under Act, 1956 upto the stage of proceedings under Section 439 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2003, but within ten days when mistake was brought to notice of Chief Justice, it was rectified, and revised Notification was issued on 14.01.2003. The legal position however, it appears remains slightly truncated for the reason that there was a verdict holding that Judges sitting at Lucknow shall have no jurisdiction in companies matters and there was notification of Chief Justice conferring such power upon Judges sitting at Lucknow. This contradiction was noticed by a learned Single Judge in Registrar of Companies Vs. M/s Kamal Infosys Ltd. (supra), hence, following question was referred to be answered by larger Bench : "Whether this company petition filed for winding up of the company M/s Kamal INFOSYS Ltd., respondent No.1 having its registered office at Lucknow is maintainable in the High Court at Allahabad." 134. A Division Bench considered all the aforesaid notifications and then held that since judgment in Sumac International Ltd. Vs. P.N.B. Capital Services Ltd. (supra) was rendered in ignorance of Notification dated 05.08.1975, the said judgment is per-incuriam. It also held that in company matters such Court has jurisdiction in whose territorial jurisdiction compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty might also wait, but that the safer course in any event is to have the order without jurisdiction set aside, or pronounced to be so, as early as possible, which is the course which the pragmatic appellant has taken in this case. 26. The appeal is allowed. The two orders under appeal are both set aside. The winding up petition is consigned to the department with liberty to the petitioning creditor to take steps in regard thereto in accordance with law as it might be advised." 136. Since jurisdiction of cases which can be entertained at Lucknow and Allahabad are governed by Article/Clause 14 of U. P. High Courts (Amalgamation) Order 1948, considering the same, in para 11 of judgment in Dr. Manju Verma (supra), Supreme Court said : "the Benches of Lucknow and Allahabad although part of one High Court, exercise distinct and exclusive jurisdiction over demarcated territories." (emphasis added) 137. If part of the cause of action had arisen within the territorial jurisdiction of both i.e. Lucknow and Allahabad, litigant has choice to invoke jurisdiction at one of the two places. 138. Sri Navin Sinha, learned Senior Counsel appearing for appellant has placed reliance on Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucknow to Allahabad." 140. In the present case, this issue is not at all involved, hence, we do not find that judgment in Dr. Manju Verma (supra) takes us any further on the question with which we are concerned. We, therefore, answer question (2) holding that since jurisdiction of cases to be entertained at Lucknow and Allahabad are distinct and exclusive over demarcated territories, it renders an order passed by Judges sitting at a place in a matter over which they have no jurisdiction, as nullity. 141. In this very context and answering question (2), we think that even question (3) can be considered simultaneously as to whether objection as to territorial jurisdiction can be raised after a long time i.e. after eight years in the case in hand, and whether appellant's objection should be declined by applying principle of Section 21 C.P.C. that such objection was not raised earlier. 142. In our view, this aspect can be considered in the light of law laid down in Harshad Chiman Lal Modi vs. DLF Universal Ltd. (2005) 7SCC 791. An agreement was entered between Harshad Chiman Lal Modi (hereinafter referred to as "Buyer") and DLF Universal Ltd. (hereinafter referred to as "Builder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is an agreement between parties regarding territorial jurisdiction, such agreement can be enforced but not in cases where Court has no jurisdiction at all. In other words, Court said that such agreement can be implemented only when two or more Courts have jurisdiction to try a suit or proceeding and parties decide and agreed for jurisdiction to one of such Courts. Court referred to and relied on its earlier judgment in Hakam Singh vs. Gammon (India) Limited, 1971 (1) SCC 286 wherein in para 4, Court said :- "It is not open to the parties by agreement to confer by their agreement jurisdiction on a court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act." (emphasis added) 143. Supreme Court said that parties cannot confer jurisdiction upon a Court which otherwise has no jurisdiction and such agreement to that extent would also be void being against public policy. Then consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 439 of Act, 1956, Judges at Allahabad will have jurisdiction but not earlier thereto. Therefore, winding up matter in the present case involves want of jurisdiction on subject-matter also to Judges sitting at Allahabad, hence, order under appeal, in our view, is without jurisdiction and cannot be sustained. In such a situation, belated objection will make no effect. 146. Moreover, with respect to delay also, we find that appellant can not be said to be a negligent and careless litigant outrightly. Reference was made by BIFR on 23.04.1999 and received by Registrar General at Allahabad on 03.05.1999. At that time, Division Bench judgment in Sumac International Limited (supra) rendered on 02.07.1997 was operating. Even Chief Justice, in the light of aforesaid judgment, issued a notification on 04.01.2003, though it was rectified within ten days. The issue still was not clear and came to be referred to a Larger Bench for consideration, by a Single Judge in Registrar of Companies vs M/s Kamal Infosys Limited (supra), which was decided on 14.03.2005. In this backdrop, when things were not clear even on administrative or judicial side, to blame appellant for delay in raising ..... X X X X Extracts X X X X X X X X Extracts X X X X
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