- (1.) A company petition, preferred by the respondents, came to be accepted under the order dated March 25, 2014 with a direction to wind up the company M/s Nitin Alloys Private Limited. Accordingly, the official liquidator attached with the court was appointed as liquidator of the company. To challenge the order aforesaid, instant appeal is preferred in the name and on behalf of the company under liquidation by and through Shri Nitin Lohiya, claiming himself to be a Director of the company. At the threshold, Shri Dinesh Mehta, learned counsel appearing on behalf of the respondents, urged that in light of the order dated 5.3.2010, passed by Division Bench of this Court in DB Civil Special Appeal No.7/2009, Tarun K. Shah v. Perfect Thread Mills Ltd., relying upon a judgment of Hon'ble Supreme Court in Kamal Kumar Dutta & Anr. v. Ruby General Hospital Ltd. & Ors., 2006 7 SCC 613 , no special appeal is maintainable giving challenge to the order passed by Company Judge.
(2.) The order dated 5.3.2010 passed by Division Bench in Tarun K. Shah's case is absolutely a non-speaking order and it does not disclose as to how the law laid down in the case of Kamal Kumar Dutta was applied in that matter, hence, we examined the preliminary objection raised by learned counsel for the respondents in light of the law laid down in the case of Kamal Kumar Dutta . In the case aforesaid objection was there about maintainability of an appeal before Division Bench against the order passed by Single Bench of High Court exercising powers as per provisions of Section 10-F of the Companies Act, 1956 (hereinafter referred to as 'the Act'). The Apex Court, while examining maintainability of such latter's patent appeal, observed and held as under:- "20. We have considered the rival submissions of the parties. The first question that we have to examine is whether the appeal against the order of the learned Single Judge lies before the Division Bench under Letters Patent or not. It may be relevant to mention here that prior to the amendment of the Act, the power under Sections 397 & 398 used to be exercised by the Company Judge of the High Court. Appeal against that order of the learned Single Judge lies under Section 483 of the Act before the Division Bench of the High Court. Section 483 of the Act reads as under : "483. Appeals from orders.- Appeals from any order made or decision given before the commencement of the Companies(Second Amendment) Act, 2002, in the matter of the winding up of a company by the Court shall lie to the same Court to which, in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction." 21. But after the amendment the power which was being exercised under Sections 397 & 398 of the Act by learned Single Judge of the High Court is being exercised by the CLB under Section 10E of the Act. Appeal against the order passed by the CLB, lies to the High Court under Section 10F of the Act. Therefore, the position which was obtaining prior to the amendment in 1991 was that any order passed by the Single Judge exercising the power under Sections 397 & 398 of the Act, the appeal used to lie before the Division Bench of the High Court. But after the amendment the power has been given to the CLB and appeal has been provided under Section 10F of the Act. Thus, Part 1A was inserted by the amendment with effect from 1.1.1964. But the constitution of the Company Law Board and the power to decide application under Sections 397 & 398 of the Act was given to the CLB with effect from 31.5.1991 and appeal was provided under Section 10F of the Act with effect from 31.5.1991. Therefore, on reading of Sections 10E, 10F , 397 & 398 of the Act, it becomes clear that it is a complete code that applications under Sections 397 & 398 of the Act shall be dealt with by the CLB and the order of the CLB is appealable under Section 10F of the Act before the High Court. No further appeal has been provided against the order of the learned Single Judge. Mr. Nariman, learned senior counsel for the respondents submitted that an appeal is a vested right and therefore, under Clause 15 of the Letters Patent of the Calcutta High Court, the appellants have a statutory right to prefer appeal irrespective of the fact that no appeal has been provided against the order of the learned Single Judge under the Act. In this connection, learned Counsel invited our attention to a decision of this Court in the case of Garikapatti Veeraya v. N. Subbiah Choudhury and in that it has been pointed out that the appeal is a vested right. The majority took the view that the appeal is a vested right. It was held as follows : "..that the contention of the applicant was well-founded, that he had a vested right of appeal to the Federal Court on and from the date of the suit and the application for special leave should be allowed. The vested right of appeal was a substantive right and, although it could be exercised only in case of an adverse decision, it was governed by the law prevailing at the time of commencement of the suit and comprised all successive rights of appeal from court to court, which really constituted one proceeding. Such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment." 22. So far as the general proposition of law is concerned that the appeal is a vested right there is no quarrel with the proposition but it is clarified that such right can be taken away by a subsequent enactment either expressly or by necessary intendment. The Parliament while amending Section 100A of the Code of Civil Procedure, by amending Act 22 of 2002 with effect from 1.7.2002, took away the Letters Patent power of the High Court in the matter of appeal against an order of learned single Judge to the Division Bench. Section 100A of the Code of Civil Procedure reads as follows: "100-A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge." 23. Therefore, where appeal has been decided from an original order by a single Judge, no further appeal has been provided and that power which used to be there under the Letters Patent of the High Court has been subsequently withdrawn. The present order which has been passed by the CLB and against that appeal has been provided before the High Court under Section 10F of the Act, that is an appeal from the original order. Then in that case no further Letters patent appeal shall lie to the Division Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where learned single Judge hears an appeal from the original order. Original order in the present case was passed by the CLB exercising the power under Sections 397 and 398 of the Act and appeal has been preferred under Section 10F of the Act before the High Court. Learned single Judge having passed an order, no further appeal will lie as the Parliament in its wisdom has taken away its power."
(3.) In the matter before us, the order under challenge is passed by a Single Bench in its original jurisdiction. The company petition itself was filed to wind up M/s Nitin Alloys Private Limited before Company Tribunal of this Court i.e. the Single Bench. In view of it, the instant one is not an appeal where the provisions of Section 100-A of the Code of Civil Procedure can be applied. The order passed by Single Bench in its original jurisdiction is appealable under Section 483 of the Act, according to which the appeal lies to the same High Court in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. In view of this legal position we are of considered opinion that in the case of Tarun K.Shah v. Perfect Thread Mills Ltd. the Division Bench wrongly applied the law laid down in the case of Kamal Kumar Dutta . The Division Bench did not examine applicability of the provisions of Section 483 of the Act in the cases where appeal is preferred against an order passed by Single Bench in its original jurisdiction. The order aforesaid, thus, is per incuriam. As already stated, in the case in hand the order impugned before us is an order passed by Single Bench of this Court in its original jurisdiction. It is not an order passed by the Single Bench in its appellate jurisdiction as per Section 10-F of the Act, as such, the law laid down in the case of Kamal Kumar Dutta is having no application in present set of facts. The order passed by learned Single Bench in a company petition, therefore, is appealable under Section 483 of the Act ibid.;