- (1.) R. R. K. Trivedi, J. Aggrieved by the order dated 6-12-1996, passed by learned single Judge, in Company Petition No, 16 of 1996, the respondent therein has filed this appeal. By the impugned order objection of the appellant questioning the maintainability of the Company petition in this Court at Allahabad has been overruled.
(2.) THE facts, in short, giving rise to this appeal are that respondent Punjab National Bank filed a petition on 2-7-1996 for winding up of appellant Company under Sections 433, 434 and 439 of the Companies Act, 1956. THE winding up of the Company has been sought on the ground that it is unable to pay its debts and, therefore, it should be wound up by order of this Court. On 3-7-1996 this Court issued notice to the appellant Company to show cause why the petition may not be admitted and advertised- In response to this notice, the appellant Company appeared and filed objection questioning the maintainability of the Company Petition and prayed for dismissal of the same. After exchange of affidavit, the objection raised by the appellant was rejected on 6-12l996. Against the aforesaid order the present appeal was filed by the appellant on 28-3-1997. We have heard Shri Janardan Sahai for appellant and Shri K. L. Grover for respondent. Learned counsel for appellant has submitted that the Notification dated 15-7-1949 excluding jurisdiction of Lucknow bench in respect of Company cases was issued by the Chief Justice in exercise of his power under the Second Proviso to para. 14 of the United Provinces High Courts (Amalgamation) Order, 1948 (hereinafter referred to as the Amalgamation Order ). The Notification is not under the First Proviso which deals with the territorial jurisdiction of the Lucknow bench in respect of districts falling in Oudh Area. It has been submitted that the Second Proviso confers power on the Chief Justice to order that any case or class of cases arising in the said areas, shall be heard at Allahabad. The word "heard" has been interpreted by the Apex Court in case of Nasiruddin v. State Transport Appellate Tribunal reported in AIR 1976 SC 331 and it has been held that the expression "heard" would not include institution of cases. Thus, under the Second Proviso, the Chief Justice could issue an order for the case or class of cases arising out of Oudh Area to be heard at Allahabad which were already instituted at Lucknow. It has been further submitted that the effect of the judgment of the Supreme Court in Nasiruddin's case is that the power under the Second Proviso can be exercised only with reference to cases already instituted at Lucknow and pending there and not in respect of cases to be instituted in future. If the order of the Chief Justice published in Notification dated 157-1949 is interpreted to mean that institution of case or class of cases at Lucknow bench is excluded and the institution should also be at Allahabad, the notification would be beyond the powers conferred on the Chief Justice under the Second Proviso to para, 14 of the Amalgamation Order and consequently it shall be invalid. It has also been submitted that as Notification dated 15-7-1949 modifies partially. the Notification dated 26-7-1948 by which the jurisdiction of Lucknow Bench has been defined in respect of the cases arising out of the Oudh Areas, the Notification is illegal and bad for want of authority in view of the Full Bench judgment of this Court in case of Ram Lakhan Saran v. Sunni Central Board of Waqfs, U. P. , Lucknow, reported in AIR 1976 All 532: (1976 All LJ 720 ). It has also been submitted that the judgment of the Division Bench of this Court dated 24-9-1982 in case of Jukul Kishore v. Official Liquidator in Special Appeals Nos. 7 and 8 of the 1979 is distinguishable as in that case winding up order had already been passed at Allahabad. The Bench in that case observed that the proceedings under Sections 446, 448, 542 and 543 of the Companies Act were in course of winding up and for these proceedings cause of action arose at Allahabad where the winding up order was passed. It is submitted that the aforesaid judgment of the Division Bench is not applicable to the facts of the present case. It is also submitted that the view taken by the Division Bench cannot be termed to be a good law as the Bench could not consider the observations of the Supreme Court in Nasiruddin's in para 37 in which the expression "heard" has been considered and interpreted and distinguished from the expression "institution". It has been further submitted that under Section 10 of the Companies Act also the Company petition for winding up of the appellant company could be filed at Lucknow and not at Allahabad. The jurisdiction at Allahabad could not be created for filing of company petition on the ground that the official liquidator has his office at Allahabad. The official liquidator is appointed for the High Court and not in respect of any Bench of High Court. It has also been submitted that the question of jurisdiction can be raised at any stage. In the present case objection was raised at the earliest opportunity even before tiling of the counteraffidavit. 'in the counter-affidavit filed on Company Petition also the question of jurisdiction was raised in para 22. Even after exchange of counter and rejoinder affidavit, the winding up proceedings are at initial stage. It has also been submitted that the cases reported in: Pathumma v. Kuntalan Kutti, AIR 1981 SC 1683 and Manager, Hardware and Tools Ltd. v. Saru Smalting (P.) Ltd. , AIR 1983 All 329 are based on Section 21, C. P. C. and cannot be helpful in the present case where appeal has been filed against the order deciding the question of jurisdiction. Learned counsel has also placed reliance in case of U. P. Rashtriya Chini Mill Adhikari Parishad v. State of U. P. , reported in AIR 1995 SC 2148: 1995 AIR SCW 3318. Shri K. L. Grover, on the other hand, submitted that learned Company Judge passed the order and issued notice and registered the case on 7-8-1996. The appellant Company filed objection to the jurisdiction which was rejected by the impugned order on 6-12-1996 and after the impugned order was passed, counter and rejoinder affidavits were exchanged. The special appeal was filed in this Court after about four months during which period the hearing of the Company petition continued. Learned counsel has further submitted that the Division Bench of this Court in Special Appeals Nos. 7 and 8 of 1979 in the matter of Ram Chandra Sugar Mills has already held that Nasiruddin's case supra has no application in the matters relating to Company cases. Learned counsel has submitted that as the Chief Justice by order dated 15-7-1949 excluded the jurisdiction of Lucknow Bench to hear the Company cases, the Company petition was rightly filed at Allahabad. It has been submitted that the Supreme Court in the Nasiruddin's case has upheld the power of the Chief Justice to pass orders in his discretion for transfer of a case or class of cases arising in erstwhile Oudh Area to be heard at Allahabad. The Notification is legal and valid and does not suffer from want of authority. Learned counsel has further submitted that under para. 18 of the Amalgamation Order, application of the laws enacted subsequent to it has been saved. The Company Act was enacted by Parliament in 1956. The jurisdiction of the new High Court of Judicature at Allahabad created by the Amalgamation Order could not be prejudiced or affected with regard to the jurisdiction conferred under the Companies Act. Learned counsel has placed reliance on S. 10 of the Companies Act and has submitted that the High Court at Allahabad has jurisdiction to hear the company petitions filed under the Company Act. The High Court is the new High Court created under para 3 of the Amalgamation on Order. From a combined reading of para 3 and 10 of the Amalgamation Order and S. 10 of the Companies Act, the only conclusion which can be drawn is that the Company Judge who sits at Allahabad alone has jurisdiction to entertain company petitions. For this purpose reliance has also been placed on Chapter V. Rule 1 of the Rules of the Court, 1952 which provides that Judges shall sit alone or in such Division Bench as may be constituted from time to time and do such work as may be allotted to them by order of Chief Justice or in accordance with his discretion. As the Company Judge has been appointed at Allahabad alone allotting him all the, cases pertaining to the Company matters, thorn is no illegality involved in entertainment of winding up petitions at Allahabad in relation to a company which has its registered office within the territories of the State of Uttar Pradesh. It has also been submitted that judgments of the Apex Court in Nasiruddin's case and case of U. P. Rashtirya Chini Mill Adhikari Parishad v. State of U. P. and another supra have no application in the present case. Learned counsel for respondent has submitted that the winding up proceedings are now at ripe stage, the appellant's objection is not substantial but only technical and no failure of justice or prejudice has been shown in the memo of appeal or in any other document and it is not a fit case for interference at appellate stage. Learned counsel has placed reliance in case of AIR 1981 SC 1683 and AIR 1983 All 329 supra.
(3.) WE have carefully considered the submissions of learned counsel for the parties. Before we consider rival submissions made on behalf of the parties, it would be appropriate if the relevant provisions of the Amalgamation Order of 1948 and the Notification issued thereunder are looked into. The Amalgamation Order has been subject matter of consideration before the Apex Court as well as before various full Benches and Division Benches of this Court. The historical background of the Amalgamation Order, 1948 has been mentioned in detail in the aforesaid Judgments and we need not repeat the same in this judgment. However, as the issue involved in the present appeal is about the interpretation of para 14 of Amalgamation Order and the Notification dated 26-7-1948 and 15-7l949, it shall be relevant to reproduce them here for convenience and better appreciation. "14. The new High Court, and the Judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may with the approval of the Governor of the United Provinces, appoint: Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such judges of the new High Court, not less than two in number, 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. " Under para 14, the Chief Justice passed order No. 6103, dated 26-7-1948. in the following term:- "in exercise of the powers conferred by Art. 14 of the United Provinces High Courts (Amalgamation) Order, 1948, the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that as from the 26-7-1948 until further order, the Bench of the High Court at Lucknow shall exercise the jurisdiction and power vested under the said Order in the High Court in respect of cases arising in the whole of Oudh. '';