# of Companies, U.P. & Uttaranchal, Kanpur v. M/s Kamal Infosys Ltd. & ors

- **Citation:** (2005) 1 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-14
- **Case number:** Company Petition No. 57 of 2001
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/of-companies-u-p-uttaranchal-kanpur-v-m-s-kamal-infosys-ltd-ors-40438
- **Pages:** 10

## Headnote

Sri A.B.L. Gaur
Sri Anil Tiwari
Sri Avanish Mishra
Sri S.P. Pandey
Sri Shyamal Narain
Sri Piyush Agarwal

Company Act 1956-S-10- Jurisdiction of
the
Court-
winding
up
proceeding
Registered office at Lucknow- only the
Lucknow Bench has jurisdiction Petition
filed at Allahabad- the only course open-
the petition should be returned for
presentation before Lucknow Bench.

Held- Para 26

In the present case, transfer is not
required at all if the Court comes to the
conclusion that it has no jurisdiction, it
has to return the plaint/petition to the
petitioner concerned to present it before
the Court of competent jurisdiction, in
view of the principles enshrined in the
provisions of Order 7, Rule 10 of the
Code of Civil Procedure and the party
may be entitled to the benefit of
limitation as provided for under Section
14 of the Limitation Act.
Case law discussed:
AIR 1971 SC- 206
AIR 2000 SC-579
AIR 1976 SC 331
2001 (2) SCC-294
AIR 1976 Alld- 532
2005 (1) SCC-73
1993 (1) RLW-554
1991 (4) SCC-139
1999 (3) SCC-112
1999(5) SCC-638
AIR 2001 SC-2293
2004 (4) SCC-590
2001) 105 Company cases 435

## Text

1 All] Registrar of Companies, U.P. & Uttaranchal V. M/s Kamal Infosys Ltd. & ors
265
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Company Petition No. 57 of 2001

Registrar
of
Companies,
U.P.
&
Uttaranchal, Kanpur
 ...Petitioners
Versus
M/s Kamal Infosys Ltd. & ors. ...Respondents

Counsel for the Petitioner:
Sri Subodh Kumar
Sri Umesh Chandra

Counsel for the Respondents:
Sri A.B.L. Gaur
Sri Anil Tiwari
Sri Avanish Mishra
Sri S.P. Pandey
Sri Shyamal Narain
Sri Piyush Agarwal

Company Act 1956-S-10- Jurisdiction of
the
Court-
winding
up
proceeding
Registered office at Lucknow- only the
Lucknow Bench has jurisdiction Petition
filed at Allahabad- the only course open-
the petition should be returned for
presentation before Lucknow Bench.

Held- Para 26

In the present case, transfer is not
required at all if the Court comes to the
conclusion that it has no jurisdiction, it
has to return the plaint/petition to the
petitioner concerned to present it before
the Court of competent jurisdiction, in
view of the principles enshrined in the
provisions of Order 7, Rule 10 of the
Code of Civil Procedure and the party
may be entitled to the benefit of
limitation as provided for under Section
14 of the Limitation Act.
Case law discussed:
AIR 1971 SC- 206
AIR 2000 SC-579
AIR 1976 SC 331
2001 (2) SCC-294
AIR 1976 Alld- 532
2005 (1) SCC-73
1993 (1) RLW-554
1991 (4) SCC-139
1999 (3) SCC-112
1999(5) SCC-638
AIR 2001 SC-2293
2004 (4) SCC-590
2001) 105 Company cases 435

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. A learned Judge of this Court has
referred the following question to the
Division 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
maintainabale in the High Court at
Allahabad."

2. The facts and circumstances
giving rise to this case are that the
Companies and their Directors are being
prosecuted after investigation made by the
C.B.I. for cheating several investors,
Banks and financial institutions through
forgery, corruption and illegal means. The
C.B.I. had registered the cases against
Directors
of
the
said
Companies.
Company petitions were filed by the
Registrar of the Companies before this
Court and the same were advertised in
accordance
with
Rule
24
of
the
Companies (Court) Rules, 1959, and
notices were issued to the respondents.
Appointment of the Official Liquidator of
the Company was also made and further
directions had been issued to him.
However,
the
said
orders
have
subsequently been kept in abeyance. The
266 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
respondent-Companies have raised a
preliminary
objection
regarding
the
jurisdiction of Allahabad High Court to
entertain the said winding up petitions.

3. The learned Judge, after hearing
the learned counsel for the parties,
realised that the issue of jurisdiction of
Allahabad High Court and its Bench at
Lucknow had been considered several
times. However, a Division Bench of this
Court in Sumac International Ltd. Vs.
P.N.B. Capital Services Ltd., AIR 1997
All
424
had
rejected
the
similar
contention, holding that such Company
matters can be heard only at Allahabad,
and the jurisdiction of the Lucknow
Bench stood excluded completely. Hence
this Reference.

4. Shri Umesh Chandra, learned
Senior
Counsel,
appearing
for
the
Companies has submitted that the Hon'ble
Apex Court has considered the issue of
jurisdiction of the Allahabad High Court
and its Lucknow Bench in a large number
of cases, and it has always been held that
the jurisdiction will depend upon the
cause of action arising, partly or fully,
within
the
respective
territorial
jurisdiction of the High Court and its
Bench. The jurisdiction of the Lucknow
Bench in Company matters had been
excluded by Notification dated 15.7.1949
issued by the Hon'ble Chief Justice under
the second proviso to Clause 14 of the
United
Provinces
High
Courts
(Amalgamation) Order, 1948 (hereinafter
called
the
Amalgamation
Order).
However, the same stood restored vide
Notification dated 5.8.1975, but the said
Notification dated 5.8.1975 could not be
brought to the notice of this Court while
deciding
Sumac
International
Ltd.
(Supra). Therefore, the said judgment
remains per in curium and does not have
any binding force. Thus, the objections of
the Companies should be allowed and the
matter should be transferred to the
Lucknow Bench for further proceedings
till the winding up proceedings are
completed.

5. Shri Subodh Kumar, learned
counsel appearing for the Registrar of
Companies and Shri Piyush Kumar
Agrawal, learned counsel for the Official
Liquidator have submitted that while
deciding the case in Sumac International
Ltd. (Supra), the Division Bench had also
considered other issues and held that it
was merely a technical breach and the
Allahabad High Court cannot be held to
be patently lacking the jurisdiction, and
their
Lordships
opined
that
even
otherwise
the
cases
could
not
be
transferred to Lucknow Bench, and in
view of the above, the objections are
liable to be rejected.

6. We have considered the rival
submissions made by the learned counsel
for the parties and have perused the
record.

7. As per the provisions of Section
10 of the Companies Act, 1956, the
jurisdiction in Company matters lies with
the High Court where the Company has
its Registered Office. Therefore, as all the
Companies are registered at Lucknow, the
cases could have been filed only before
the
Lucknow
Bench
in
ordinary
circumstances. Sub-section (3) further
provides
that
for
the
purpose
of
jurisdiction to wind up Companies, the
expression 'Registered Office' means the
place which has longest been the
Registered Office of the Company during
the six months immediately preceding the
1 All] Registrar of Companies, U.P. & Uttaranchal V. M/s Kamal Infosys Ltd. & ors
267
presentation of the petition for winding
up. The Hon'ble Supreme Court in
Hanuman Prasad Gupta Vs. Hiralal, AIR
1971 SC 206; and H.S. Jaya Ram Vs.
Indian Credit and Investment Corporation
of India Ltd., AIR 2000 SC 579, while
dealing with company matters, held that
the jurisdiction of the Court is to be
determined
only
by
examining
the
territorial jurisdiction of the Court where
the Registered Office of the Company is
situated.

8. Learned Counsel appearing for
the Registrar of Companies and Official
Liquidator have fairly conceded that the
cause of action either fully or partly had
not
arisen
within
the
territorial
jurisdiction of this Court but had arisen
only within the territorial jurisdiction of
the Lucknow Bench. However, the matter
was required to be examined in the light
of the Notifications issued by the Hon'ble
Chief Justice from time to time in
exercise of the power under clause 14 of
the Amalgamation Order excluding or
including the jurisdiction of the Lucknow
Bench in the Company matters. Clause 14
of the Amalgamation Order reads as
under:-

"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
area 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."

9. The first proviso enables the
Hon'ble Chief Justice to fix the territorial
jurisdiction of the Lucknow Bench.
However, second proviso confers the
power to take away the jurisdiction of the
Lucknow Bench in any case or class of
cases arising in the said area, and to
confer the same upon the Allahabad High
Court.

10. Large number of Notifications
have been issued in exercise of the power
under
the
Amalgamation
Order,
particularly,
Notifications
dated
26.7.1948, 15.7.1949, 2nd July, 1954, 5th
August, 1975, 4th January, 2003 and
14.1.2003. The issue of question of
jurisdiction of the Lucknow Bench and
this Court has been considered time and
again by the Hon'ble Apex Court as well
as by this Court.

11. A Constitution Bench of the
Hon'ble Supreme Court in Nasiruddin Vs.
State Transport Appellate Tribunal, AIR
1976 SC 331 examined the correctness of
the judgment of the Full Bench of this
Court between the same parties, reported
in AIR 1972 All 200. In that case, the
question arose regarding grant of permits
under the provisions of Motor Vehicles
Act, 1939 by the Regional Transport
Authority, Bareilly. Against the resolution
of the RTA, appeals were preferred before
the State Transport Appellate Tribunal,
Lucknow, and against the orders passed
268 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
by the Appellate Tribunal, writ petitions
were filed before the Lucknow Bench. A
question arose as to whether the cause of
action arose at Bareilly, in spite of the fact
that the appeals had been disposed of by
the
Tribunal
at
Lucknow
and
consequently as to whether the writ
petitions could have been entertained by
the Lucknow Bench for the reason that
Bareilly
was
within
the
territorial
jurisdiction of the Allahabad High Court.
It was held that Lucknow Bench had
territorial jurisdiction over 12 districts,
namely, Lucknow, Faizabad, Sultanpur,
Rai Bareli, Pratap Garh, Barabanki,
Gonda, Baharaich, Sitapur, Kheri, Hardoi
and Unnao, and the Lucknow Bench can
entertain a petition if the cause of action
had arisen partly or fully within those 12
districts. The Court held that it was
immaterial that the original order had
originated from Bareilly and as the appeal
was decided by the Tribunal at Lucknow,
it cannot be said that the cause of action
had not partly arisen within the territorial
jurisdiction of the Lucknow Bench. The
Court held as under:-

"If the cause of action arises in part
within the specified areas in Oudh it
would be open to the litigant who is the
dominus
litis
to
have
his
forum
conveniens. The litigant has the right to
go to a Court where part of his cause of
action arises. In such cases, it is incorrect
to say that the litigant chooses any
particular Court. The choice is by reason
of the jurisdiction of the Court being
attracted by part of cause of action arising
within the jurisdiction of the Court.
Similarly, if the cause of action can be
said to have arisen partly within specified
areas in Oudh and partly outside the
specified Oudh areas, the litigant will
have the choice to institute proceedings
either at Allahabad or Lucknow. The
Court will find out in each case whether
the jurisdiction of the Court is rightly
attracted by the alleged cause of action."

12. The Hon'ble Apex Court had
further held that in terms of the Clause 14
of the Amalgamation Order once the
Hon'ble Chief Justice had exercised the
power fixing the territorial jurisdiction no
further order can be passed in this respect,
as the order had to be determined only
once and there was no scope for changing
the same. However, the Hon'ble Chief
Justice had the power under second
proviso to the said Clause to direct, in his
discretion, that any case or class of cases
arising in Oudh areas shall be heard at
Allahabad.
Hearing
therein
includes
institution. Where the cause of action had
arisen in respect of civil matters, it should
be left to the litigant to institute cases at
the Lucknow Bench or at the Allahabad
High Court according to where the cause
of action had arisen, wholly or in part.
However, in cases where the cause of
action had arisen in part within the
jurisdiction of the Lucknow Bench as well
as the Allahabad High Court, it must be
left to the choice of the litigant to institute
the proceedings either at Lucknow Bench
or at Allahabad High Court.

In U.P. Rashtiya Chini Mill Adhikari
Parishad Vs. State of U.P., AIR 1995 SC
2148, a similar question was raised. As
the said Parishad wanted to dispose of the
sugar factories, it invited the tenders by
issuing the Notification from Lucknow.
Though only one factory was situated
within the Awadh area and the rest
outside the said area, petitions were filed
at Lucknow. While dealing with the
matter the Hon'ble Apex Court, following
its earlier decision in Nasiruddin (Supra),
1 All] Registrar of Companies, U.P. & Uttaranchal V. M/s Kamal Infosys Ltd. & ors
269
held that as the Notification had been
issued at Lucknow and the parties could
be
aggrieved
only
by
the
said
Notification, the Lucknow Bench had the
jurisdiction to deal with the matter as the
cause of action had arisen at Lucknow.
The Hon'ble Apex Court also held that the
Amalgamation Order was a special law,
and this being so must prevail over the
general law. Therefore the jurisdiction is
to be taken strictly as per the provisions of
the Amalgamation Order.

13. Similar view has been reiterated
by the Hon'ble Apex Court in Rajasthan
High Court Association Vs. Union of
India & Ors., (2001) 2 SCC 294. The
Jaipur Bench of Rajasthan High Court
was established in 1976 and 11 districts
had
been
placed
in
its
territorial
jurisdiction. The Court applied the same
principle and held that if the cause of
action either fully or partly had arisen in
the district specified to the Jaipur Bench,
it would have the competence as the
territorial
jurisdiction
was
bifurcated
between the principal seat and the
permanent Bench of the Rajasthan High
Court, and therefore, their jurisdiction is
to be determined strictly in view of the
provisions of Clauses 1 and 2 of Article
226 of the Constitution of India.

14. The judgment in Ram Lakhan
Saran Vs. Sunni central Board Waqf, AIR
1976 All 532 referred to by both the
parties, is not relevant for determining the
controversy involved herein as the said
judgment is only to the extent that once
the Hon'ble Chief Justice has fixed the
territorial jurisdiction of the Lucknow
Bench, it cannot be changed.

15. The Hon'ble Supreme Court in
Dr. Manju Verma Vs. State of U.P. &
Ors., (2005) 1 SCC 73 considered the
whole issue as well as the aforesaid
judgments
in
Nasiruddin
(Supra);
Rajasthan High Court Association (Supra)
and interpreted the provisions of Clause
14 of the Amalgamation Order holding
that as in the said case the order had been
issued by the State Government having a
seat at Lucknow, the Lucknow Bench had
the jurisdiction to entertain the petition,
and by transferring the case to Allahabad
High Court by passing a quasi-judicial
order, the Hon'ble Chief Justice deprived
the said petitioner of her right as dominus
litis.

16. The issue similar to the one in
hand was considered by the Rajasthan
High Court in Bimal Kumar Vs. M/s.
Bhilwara Wooltax Limited, (1993) 1
RLW 554. While considering the case of
winding up petition of a Company, the
Court held that in view of the provisions
of Section 10, the winding up petition
could be filed in the High Court in whose
territorial
jurisdiction
the
Registered
Office of the Company is situated. In the
said case it was in Bhilwara which was
within the jurisdiction of the main seat at
Jodhpur, and therefore, the Court directed
that the matter be transferred. The Court
held that it had wrongly been filed before
the Jaipur Bench and direction was given
to file the same at Jodhpur, the main seat
of Rajasthan High Court, for the reason
that the liquidation proceedings could not
be allowed to continue at Jaipur as it was
having no jurisdiction over the matter.

17. In view of the above, we reach
the conclusion that the jurisdiction of the
Lucknow Bench or this Court would
depend in whose jurisdiction the cause of
action had arisen, partly or fully, and in
case it has arisen partly within the
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
territorial jurisdiction of both, the litigant
has a right to choose the forum of his
choice. However, it remains undisputed
that in a matter like this, the Bench within
whose jurisdiction the Company has its
Registered
Office
will
have
the
jurisdiction to entertain the petition unless
the jurisdiction of the Lucknow Bench
stands excluded by issuing a Notification
in exercise of the power under the second
proviso to Clause 14 of the Amalgamation
Order. Thus, the said Notifications require
examination.

Notification dated 26.07.1948:
"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 orders, the Bench of the High
Court at Lucknow shall exercise the
jurisdiction and powers vested under the
said Order in the High Court in respect of
cases arising in the whole of Oudh."

Notification dated 15.07.1949:

"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 notification no. 6103, dated July
26, 1948, as amended up-to-date, the
Chief Justice of the High Court of
Judicature at Allahabad is pleased to
direct that with effect from July 25, 1949,
the Lucknow Bench of the High Court of
Judicature at Allahabad shall not exercise
jurisdiction and power in respect of cases
under the following Act arising within the
existing territorial jurisdiction:-
..........

..........
3. The Indian Companies Act, 1913
(Act VII of 1913)
..........

..........

Provided
that
nothing
herein
contained shall affect the jurisdiction and
power of the Lucknow Bench in respect
of proceedings already pending before
that Bench prior to the coming into force
of this Notification."

Notification dated 05.08.1975:

"WHEREAS by notification No.
8427/Ib-39-49 dated the 15th of July,
1949, the Lucknow Bench of 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 be
heard at Allahabad.
..........

..........
5. The Indian Companies Act 1913
(Act VII of 1913)
..........

..........
AND WHEREAS by the subsequent
notification No. 6948/Ib-39 dated the 2nd
of July, 1954, the Lucknow Bench of the
High Court of Judicature at Allahabad
was to exercise the jurisdiction and power
of the High Court in respect of the cases
under the following Acts arising in the
areas of erstwhile Oudh:
..........

..........
and
the
cases
under
the
Indian
Companies Act, 1913 (Act VII of 1913)
and Indian Income Tax Act, 1922 (Act XI
of 1922) arising in the areas of erstwhile
Oudh continued to be heard and decided
at Allahabad and the Lucknow Bench was
not to exercise jurisdiction and power of
the High Court in respect to those class of
cases.
1 All] Registrar of Companies, U.P. & Uttaranchal V. M/s Kamal Infosys Ltd. & ors
271
AND WHEREAS it is desirable that
the Lucknow Bench of the High Court of
Judicature at Allahabad should exercise
the jurisdiction and power of the High
Court in respect of cases under the
Income Tax Act, 1961 and under the
Companies Act, 1956 up to the stage of
winding up arising within the area of
erstwhile Oudh.

1.
The Income Tax Act, 1961 (Act
No. XLIII of 1961)
2.
The Companies Act, 1956 (Act
No. 1 of 1956)
upto the stage of winding up i.e. upto the
stage of proceedings under Section 439
Companies Act, 1956.

PROVIDED that after the winding
up order is passed the subsequent
proceedings will be heard at Allahabad.

PROVIDED FURTHER that all
proceedings
under
the
above
Acts
instituted or commenced before the date
of enforcement of this notification, shall
continue to be heard at Allahabad. .........."

Notification dated 04.01.2003
"1. ..............
2.
Taking into consideration the
judgment rendered by a Division Bench
of this court in the case of Sumac
International Ltd. Vs. P.N.B. Capital
Services Ltd., decided on July 2, 1997
reported in 1998 Company Cases Vo. 93
Page 236 as well as the judgment of this
court rendered by another Division Bench
in the case of Smt. Padmawati Vs. The
Official Liquidator (Special Appeal No.
7 of 1979) connected with the case of Sri
Jugal Kishore Vs. Official Liquidator
dated
24.9.1982,
which
have
since
attained
finality,
specially
the
observations made therein, the position in
regard to the exercise of jurisdiction,
entertainment and disposal of the matters
falling
within
the
ambit
of
the
Companies Act as enforced w.e.f. 25th
July, 1949 shall stand restored in
supersession of the intervening orders
covering the subject passed thereafter.
3.Let the consequential steps be
taken in the light of the observations
made in para 39 of the judgment of this
Court rendered by a Full Bench of five
Judges in the case of Ram Lakhan Saran
Vs. The Sunni Central Board of Waqf,
U.P., Lucknow reported in A.I.R. 1976
Allahabad -532"

18. The Acting Chief Justice on
being informed about the 1975 Order
passed
another
order
on
14.1.2003
modifying the earlier order dated 4.1.2003
to the extent that the figures 25.7.1949 be
substituted by 1.10.1975.

19. Thus, it is evident from the
aforesaid that by the Notification dated
15.7.1949, the Hon'ble Chief Justice in
exercise of his powers under the second
proviso to Clause 14 of the Amalgamation
Order, had withdrawn the jurisdiction of
the Lucknow Bench to deal with the
matters under the Companies Act, but by
the Notification dated 5.8.1975, the
Hon'ble Chief Justice conferred the said
jurisdiction under the Companies Act
upon the Lucknow Bench up to the
stage of winding up.

20.

This
Court
in
Sumac
International Ltd. (Supra) decided the
issue but the Notification dated 5th
August, 1975 could not be brought to the
notice of the Court. We are of the view
that had it been so pointed out to the
Bench, the judgment could have been
otherwise. Thus, in view of the above the
272 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
submission
made
by
Shri
Umesh
Chandra, learned Senior Counsel for the
Company that the said judgment was
rendered
per
in
curium
is
worth
acceptance.

21.

"Incuria"
literally
means
"carelessness". In practice, per incurium is
taken to mean per ignoratium. Per-incurium are decisions given in ignorance
or
forgetfulness
of
some
statutory
provisions or of some Authority binding
on the Court concerned. In case a decision
is rendered without considering the
statutory bar, the same cannot have any
precedent
value.
(Vide
Mamleshwar
Prasad & Ors. Vs. Kanhaiya Lal, AIR
1975 SC 907; A.R. Antulay Vs. R.S.
Nayak, AIR 1988 SC 1531; Municipal
Corporation of Delhi Vs. Gurnam Kaur,
AIR 1989 SC 38; State of U.P. Vs.
Synthetics and Chemicals Ltd., (1991) 4
SCC 139; Ram Gopal Baheti Vs.
Giridharilal Soni & Ors., (1999) 3 SCC
112; Sarnam Singh Vs. Dy. Director of
Consolidation & Ors., (1999) 5 SCC 638;
Government of Andhra Pradesh Vs. B.
Satyanarayana Rao, AIR 2000 SC 1729;
Fuerst Day Lawson Ltd. Vs. Jindal
Exports Ltd., AIR 2001 SC 2293;
Suganthi Suresh Kumar Vs. Jagdeeshan,
AIR
2002
SC
681;
Director
of
Settlements A.P. & Ors. Vs. M.R.
Apparao & Anr., (2002) 4 SCC 638; State
Vs. Ratan Lal Arora, (2004) 4 SCC 590;
and Sunita Devi Vs. State of Bihar,
(2005) 1 SCC 608).

22. The submission made by Shri
Subodh Kumar and Shri Piyush Agrawal
placing reliance on the observation made
by this Court in Sumac International Ltd.
(Supra), cannot be accepted. The relevant
part of the judgment on which they placed
reliance, is as under:-
"Even assuming for the sake of
argument that the contention of learned
counsel for the appellant is correct, as
learned counsel does not dispute that the
case can be lawfully heard at Allahabad, it
shall be only a technical breach if the
petition is instituted at Allahabad instead
of Lucknow as it has to be ultimately
heard at Allahabad and for this technical
defect or reason, in our opinion, it shall
not be appropriate to hold that the
proceedings are not maintainable at
Allahabad. If the petition is instituted and
heard at Allahabad, it shall not be a case
of total lack of jurisdiction. At the most it
can be said to be a defective exercise of
jurisdiction at one stage but which is
rendered ineffective if the stage of hearing
has come. Ultimately, both the Benches at
Allahabad and Lucknow form one High
Court."

23. The observations are only in
respect of institution and hearing. Their
Lordships have not observed that even
otherwise, it could have been possible that
the matter be heard at Allahabad if the
Notification dated 15th July, 1949 was
not there. The observation was only to
save the party from harassment that it was
not desirable that they should file a
petition at Lucknow and only then it
could be transferred to Allahabad. It has
not been held that had the Notification
dated 15th July, 1949 been not there, the
petition could be entertained by the
Allahabad High Court.

24. After the judgment in Sumac
International Ltd. (Supra) when the matter
was placed before the Hon'ble Acting
Chief Justice, His Lordship was pleased
to pass an order dated 4.1.2003 providing
for enforcement of the Notification dated
15th July, 1949. While passing the said
1 All] Registrar of Companies, U.P. & Uttaranchal V. M/s Kamal Infosys Ltd. & ors
273
order, the Hon'ble Acting Chief Justice
had also taken note of decisions in other
cases in Smt Padmawati and Shri Jugal
Kishore referred to in that judgment.
However, immediately thereafter, the
notification dated 5.8.1975 issued under
Clause 14 of the Amalgamation Order
was brought to the notice of the Acting
Chief Justice and, therefore, His Lordship
thought it necessary to pass the order
dated 14.1.2003 in supersession of the
earlier order dated 4.1.2003, and in view
thereof, no room for doubt is left that the
Acting Chief Justice had enforced the
order dated 5th August, 1975. In view
thereof the matter could have been filed
only before the Lucknow Bench.

25. Very heavy reliance has been
placed by Shri Subodh Kumar on the
judgment of the Patna High Court in
Bihar
State
Industrial
Development
Corporation Ltd. Vs. Presiding Officer &
Ors., (2001) 105 Company Cases 435,
wherein the issue arose regarding the
transfer of the proceedings from the
Ranchi Bench to Patna, in view of the
provisions of High Court at Patna
(Establishment of Permanent Bench at
Ranchi) Act, 1976 and the Patna High
Court Rules. In the said Act 1976 there
had been analogous proviso enabling the
Hon'ble Chief Justice to transfer a case
from Ranchi Bench to Patna High Court
but not vice versa, and the Court held that
transferring a case from Patna to Ranchi
was impermissible as it would amount to
an
illegality.
However,
the
Court
considering the provisions of Sections
448 and 449 of the Companies Act, 1956
held that winding up petitions should be
filed where the official liquidator had the
office and there cannot be different
winding up proceedings within the same
High Court away from the establishment
of the official liquidator attached to the
High Court.

26. We are of the opinion, with all
respect and humility at our command, that
the Patna High Court failed to take into
consideration the provisions of Section 10
of the Act 1956. More so, there can be no
difficulty for initiating the proceedings
before the Lucknow Bench, at least upto
the stage of winding up. Though it may be
more expensive and may also amount to
harassment of the parties, as has been
noticed
by
this
Court
in
Sumac
International Ltd. (Supra), but as the
matter raises the question of jurisdiction,
the case requires to be decided seriously
as an order without jurisdiction becomes a
nullity. More so, there is also a clear
distinction as the Patna High Court was
dealing with the issue of transfer of a
case. In the present case, transfer is not
required at all if the Court comes to the
conclusion that it has no jurisdiction, it
has to return the plaint/petition to the
petitioner concerned to present it before
the Court of competent jurisdiction, in
view of the principles enshrined in the
provisions of Order 7, Rule 10 of the
Code of Civil Procedure and the party
may be entitled to the benefit of limitation
as provided for under Section 14 of the
Limitation Act.

27. To sum up, our conclusions are
that in company matters, that Court has
the
jurisdiction
in
whose territorial
jurisdiction
the
Company
has
the
Registered Office. It is so necessary also
for the reason that Directors of a
Company may be prosecuted at hundred
of places, as in a given case, share holders
of the Company may file complaints at
different places throughout India. Section
10 (3) of the Act, 1956 clarifies the
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
necessity further, as the Company may
change the location of its registered
office. In the instant case, registered
office of the Company is at Lucknow.
Jurisdiction of the Lucknow Bench in
Company
matters
ousted
by
the
Notification dated 15.07.1949 has been
restored
vide
Notification
dated
05.08.1975. However, it is only upto the
stage of winding up proceedings, and
subsequent thereto, the case is required to
be decided by this Court. This position is
crystal clear from the Notifications dated
05.08.1975, 04.01.2003 and 14.01.2003.
The petitions require to be returned to the
petitioners to be presented before the
Lucknow Bench.

28. In view of the above, we are of
the opinion that the instant petition is not
maintainable before this Court as the
registered office of the Company is
situated within the territorial jurisdiction
of the Lucknow Bench. Reference is
answered accordingly.

Send the papers back to the learned
Judge.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 25977 of 2005

Ramakant Singh and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri J.P. Singh

Counsel for the Respondents:
Sri C.K. Rai
Sri N. Misra
S.C.

Constitution
of
India,
Article
226-
Election management of cooperative
society-voter list published and final- the
name of petitioners society excluded as
it was defaulter- once the date for
election
notified-
court
should
not
intervene to stop the election process-
otherwise grave in justice would be done
to the crores of other voters- proper
remedy file election petition.

Held- Para 9

If this was allowed to be done, no
election would ever take place because
someone or the other would always find
some excuse to move the Court and stall
the elections. The importance of holding
elections at regular intervals cannot be
overemphasized. If holding of elections
was allowed to stall on the complaint of
a few individuals then grave injustice
would be done to crores of other voters
who
had
a
right
to
elect
their
representatives
to
the
democratic
bodies.
Case law discussed:
AIR 1995 Alld-57
AIR 1992 SC-64
AIR 1988 SC-616
1982 (2) SCC-218
1987 SC-1577
AIR 1988 SC-66
1988 AWC (i) 503
AIR 1994 SC-1673
1998 (8) SCC-703
2000 (8) SCC-216
AIR 2004 SC- 3600

(Delivered by Hon'ble Dr. B.S Chauhan, J.)

1. This writ petition has been filed
for
a
direction
to
the
District
Collector/Returning Officer to include
certain members for the purpose of
participation in the election of the District