# U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd v. Official Liquidator & another

- **Citation:** (2009) 3 ILRA 1176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-18
- **Case number:** Special Appeal No.1748 of 2009
- **Bench:** Ashok Bhushan, K.N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-cement-vetanbhogi-sahkari-rin-samiti-ltd-v-official-liquidator-another-41425
- **Pages:** 10

## Headnote

High Court rules-Chapter VIII, Rule-5Special Appeal-order passed by Single
Judge under Section 438 of companies
Act-exercising
Appellate
jurisdictionclearly bar under Section 100-A C.P.C.-
law laid down in K.K. Dutta's Case by
Apex
Court-fully
applicable-Special
Appeal-held-not maintainable.

Held: Para 20 & 22

In view of the foregoing discussion, it is
clear that even if under Section 483,
there was no condition prohibiting an
appeal against an order of the learned
Single
Judge
passed
in
appellate
exercise
of
jurisdiction,
the
said
exclusion has been now specifically
provided in by the Legislature under
Section 100-A C.P.C. The judgment of
the Apex Court in Kamal Kumar Dutta
(supra) applies with full force in the
facts of the present case.

The application moved for correction in
the
order
passed
in
the
appellate
exercise of jurisdiction by the learned
Single Judge clearly bars further appeal
under Section 483 of the Companies Act,
as well as Letters Patent as laid down by
the Apex Court in the case of Kamal
Kumar Dutta (supra).
Case law discussed:
AIR 1965 SC, 507; AIR 1988 SC, 325, AIR
2004 Bombay, 38, 2004 (11) SCC 672, 2006
(7) SCC 613.

## Text

1176 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
7. Accordingly, the petitioner after
08.07.2006 does not have a minimum
experience of four years as held by the
Apex Court in Balbir Kaur's case (supra).

8. The writ petition therefore lacks
merit and is accordingly dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE K.N. PANDEY, J.

Special Appeal No.1748 of 2009

U.P. Cement Vetanbhogi Sahkari Rin
Samiti Ltd.

...Appellant
Versus
Official Liquidator & another...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri J.H. Khan
Sri Ravi Prakash Srivastava

Counsel for the Respondents:
Sri Ashok Mehta

High Court rules-Chapter VIII, Rule-5Special Appeal-order passed by Single
Judge under Section 438 of companies
Act-exercising
Appellate
jurisdictionclearly bar under Section 100-A C.P.C.-
law laid down in K.K. Dutta's Case by
Apex
Court-fully
applicable-Special
Appeal-held-not maintainable.

Held: Para 20 & 22

In view of the foregoing discussion, it is
clear that even if under Section 483,
there was no condition prohibiting an
appeal against an order of the learned
Single
Judge
passed
in
appellate
exercise
of
jurisdiction,
the
said
exclusion has been now specifically
provided in by the Legislature under
Section 100-A C.P.C. The judgment of
the Apex Court in Kamal Kumar Dutta
(supra) applies with full force in the
facts of the present case.

The application moved for correction in
the
order
passed
in
the
appellate
exercise of jurisdiction by the learned
Single Judge clearly bars further appeal
under Section 483 of the Companies Act,
as well as Letters Patent as laid down by
the Apex Court in the case of Kamal
Kumar Dutta (supra).
Case law discussed:
AIR 1965 SC, 507; AIR 1988 SC, 325, AIR
2004 Bombay, 38, 2004 (11) SCC 672, 2006
(7) SCC 613.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Shri W.H. Khan, learned
Senior Advocate assisted by Shri J.H.
Khan for the appellant and Shri Ashok
Mehta for the respondents.

2. This Special Appeal under
Chapter VIII Rule 5 of the High Court
Rules has been filed against the judgment
and order of the learned Single Judge of
this Court dated 26/5/2009 deciding the
Application for Correction in an earlier
order dated 27/4/2007 passed by learned
Single Judge in Civil Misc. Company
Appeal/Objection
No.85/2007
in
Company Application No. 4/97. The
application has been rejected by a learned
Single Judge vide its order dated
26/5/2009. The order dated 27/4/2007 was
passed by learned Single Judge under
Rule 164 of the Companies (Court) Rules,
1959 (hereinafter called the "Rules
1959"). In the matter of the report of the
Official
Liquidator,
Uttar
Pradesh
adjudicating on the ''proof of debts' and
proposing to distribute the sale proceeds
of the assets of the ''U.P. State Cement
3 All] U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd. V. Official Liquidator & another
1177
Corporation
Limited
(in
liquidation)
wound up by the Court on 08/12/1999.

3. Shri Ashok Mehta learned
counsel appearing for the respondents
raised a preliminary objection regarding
the maintainability of this Special Appeal
under Chapter VIII Rule 5 of the High
Court Rules. He submits that the order
which has been impugned is an order
passed in appellate proceedings before the
learned Single Judge under Rule 164 of
Rules, 1959 hence both the Letters Patent
Appeal as well as appeal under Section
483
of
the
Companies
Act,
1956
("hereinafter called the Act 1956") is
barred. Shri Ashok Mehta learned counsel
appearing for the respondents contends
that the Special Appeal against the order
of learned Single Judge passed in
appellate jurisdiction is not maintainable.
He contends that under Chapter VIII Rule
5 of the High Court Rules the Special
Appeal is barred against an order passed
by learned Single Judge in exercise of
appellate jurisdiction. He submits that
appeal
under
Section
483
of
the
Companies Act also cannot be entertained
against an order passed by learned Single
Judge passed in appellate exercise of
jurisdiction. He submits that Section 100A C.P.C. also clearly bars any further
appeal after order of learned Single judge
in exercise of appellate jurisdiction.

4. Shri W.H. Khan, learned Senior
Counsel appearing for the appellant
refuting the submission of learned counsel
for the respondents contends hat this
appeal is clearly maintainable under
Section 483 of the Companies Act, 1956.
He submits that under Section 483 of the
Companies Act, any order passed by
learned Company Judge is appeallable.
He has placed reliance on the judgement
of
the
Apex
Court
in
Shankerlal
Aggarwala & Ors. Vs. Shankerlal Poddar
& Ors, AIR 1965 SC, 507; Smt. Arati
Dutta Vs. M/s. Eastern Tea Estate (P)
Ltd., AIR 1988 SC, 325 and Maharashtra
Power Development Corporation Ltd. Vs.
Dabhol Power Co. & Ors., AIR 2004
Bombay, 38.

5.

We
have
considered
the
submissions of the learned counsel for the
parties and have perused the record.

6. We proceed to decide the
preliminary objection raised by the leaned
counsel for the respondents.

7. Learned counsel for the appellant
has placed reliance under Section 483 of
the
Companies
Act,
1956
for
maintainability of the appeal . Section 483
provides as follows:

"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 of decision of the Court in cases
within its ordinary jurisdiction."

8. Learned counsel for the appellant
submits that the words used in Section
483 to the effect "in the same manner...
and subject to the same conditions"
cannot be interpreted to exclude the
appeal under Section 483 and the above
words only regulate procedure of filing
the appeal. Reliance has been placed on
the judgement of the Apex Court in
Shankerlal Aggarwala's case (supra). The
1178 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Apex Court in the aforesaid judgment had
occasion to interpret Section 202 of the
Companies Act, 1913 which was a
provision parimateria to the provision to
Section 483.

9. Following was laid down in para
18 of the judgment:

"18. The question that would arise is
as to what is meant by "ordinary
jurisdiction" of the Court. Plainly the
words would only exclude jurisdiction
vested in the Court by special statutes as
distinguished
from
the
statutes
constituting the Court. Undoubtedly, in
the case of a High Court the limits of
whose jurisdiction are governed by its
Letters Patent, the Letters Patent would
determine what the "ordinary jurisdiction"
is. But that Letters Patent is not
immutable and has been the subject of
several
alterations.
Thus
when
the
Companies Act was passed in 1913, an
appeal lay from every "judgment" of a
Single Judge of the High Court. But in
March, 1919 it was amended so as to
exclude the rights of appeal from
judgment passed in exercise of revisional
jurisdiction and in exercise of the power
of superintendence under S. 107 of the
Government of India Act, 1915. There
can be no doubt either that the exercise of
revisional or supervisory jurisdiction is as
much "ordinary jurisdiction" of the High
Court
as
its
original
or
appellate
jurisdiction and it cannot be that there has
been any alteration in the law as regards
the appealability of decisions of a High
Court under S.202 of the Companies Act
by reason of the amendment of the Letters
Patent. Again, the Letters Patent were
amended in January, 1928 when appeals
against decisions in second appeals were
made subject to the grant of leave by
Judges rendering such decisions. If the
decision in a second appeal were in the
exercise of "ordinary jurisdiction", and
there can be no controversy about it, then
the construction of S. 202 of the
Companies Act in relation to a High
Court which is the primary Court
exercising
jurisdiction
under
the
Companies Act (vide S. 3(1) of the Act)
would lead to anomalous results as
judgments or decisions rendered in
different types of cases, though all of
them are in the exercise of "ordinary
jurisdiction", are subject to different
conditions as regards appealability. We
thus agree with Chagla, C.J. that the
second part of the section which refers to
"the manner" and "the conditions subject
to which appeals may be had" merely
regulates the procedure to be followed in
the presentation of the appeal and of
hearing them, the period of limitation
within which the appeal is to be presented
and the forum to which appeal would lie
and does not restrict or impair the
substantive right of appeal which has been
conferred by the opening words of that
section. We also agree with the learned
Judges of the Bombay High Court that the
words "order or decision" occurring in the
lst part of S. 202 though wide, would
exclude merely procedural orders or those
which do not affect the rights or liabilities
of parties. Learned Counsel for the
appellant did not suggest that if this test
were applied the order of the learned
Company Judge would be an order or
decision merely of a procedural character
from which no appeal lay."

10. Another judgment relied on by
the learned counsel for the appellant is
Smt. Arati Dutta (supra) which was a case
where the Apex Court following its earlier
judgment in Shakeral Aggarwala's case
3 All] U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd. V. Official Liquidator & another
1179
held that the appeal would lie in the same
manner to the same Court.

11. In Smt. Arati Dutta's case an
order was passed on a petition under
Sections 397 and 398 of the Companies
Act against which order an appeal was
filed in the High Court which appeal was
decided by the Division Bench. Special
Leave Petition was filed in the Supreme
Court
in
which
the
question
was
considered as to whether the appeal
before the Division Bench under Section
483 was maintainable or not.

12. Following was laid down in
paragraphs 6, 7 and 8 of the judgment
which is quoted below:

"6. The Court further held that there
was nothing in S. 483 of the Companies
Act 1956, which took away or curtailed
the right of appeal provided by S. 5(l) of
the Delhi High Court Act, 1966, and Cl.
10 of the Letters Patent (Punjab) as
applicable to the Delhi High Court; and
that the jurisdiction conferred on the
Company Judge of the High Court under
S. 10 of the Companies Act was none
other than its ordinary civil jurisdiction
and appeal lay also under Cl. 10 of the
Letters Patent to a Division Bench from
the order of the Company Judge.
7. In this case in the High Court of
Gauhati, however, unlike the Bombay
High Court or the Calcutta High Court or
the Delhi High Court, no Letters Patent
was applicable to the Gauhati High Court.
It was therefore held that there was no
provision for an appeal to the judgment of
the learned single Judge of the High
Court. In our opinion the decision in
Shankar Lal Aggarwal v. Shankar Lal
Poddar, (AIR 1965 SC 507) (supra) of
this Court indicated the true position
where this Court held in S. 202 of the
Companies Act, 1913 was in pari materia
with the present section. This Court
preferred the view of the Chief Justice
Chagla of the Bombay High Court
reported in Bachharaj Factories Ltd. v.
Hirjee Mills Ltd., AIR 1955 Bom 355 to
the view expressed by the Calcutta High
Court in Madan Gopal Daga v. Sachindra
Nath Sen, AIR 1928 Cal 295 wherein it
was held that an order or the decision
made or given in the matter of winding up
of a company to be appealable had to
satisfy the requirements of Cl. 15 of the
Letters Patent. This interpretation was not
accepted by other High Courts and the
Bombay High Court held differently. The
view of the Bombay High Court was
preferred by this Court in the aforesaid
decision and it was observed as follows:
"We thus agree with Chagla C.J., that
the second part of the section which refers
to 'the manner' and 'the conditions subject
to which appeals may be had' merely
regulates the procedure to be followed in
the presentation of the appeals and of
hearing them, the period of limitation
within which the appeal is to be presented
and the forum to which appeal would lie
and does not restrict or impair the
substantive right of appeal which has been
conferred by the opening words of that
section."
8. In our opinion this position is clear
from the observation of this Court in
Shankar Lal Aggarwal v. Shankar Lal
Poddar (supra) that the appeal lies to the
same High Court irrespective of the
powers under the Letters Patent. Sections
397 and 398 read with S. 483 indicate that
the appeal would lie in the same manner
to the same court and naturally and
logically an appeal from the decision of
the single Judge would lie to the Division
Bench. This in our opinion follows
1180 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
logically from the ratio of decision of this
Court
in
Shankarlal
Aggarwal
v.
Shankarlal Poddar (supra) as well as other
decisions referred hereinbefore. It is true
that there is perhaps no procedure to file
an appeal from the decision of the learned
single Judge of the Gauhati High Court. If
that is so rules should be framed by the
High Court in its jurisdiction of Rule
making power for filing and disposal of
such
appeals.
But
absence
of
the
procedure rules do not take away a
litigant's right to file such appeals when
the
statute
confers
such
a
right
specifically and the jurisdiction of the
High Court to dispose of such an appeal if
so filed."

13. Arati Dutta's case was not a case
where the learned Company Judge has
exercised any appellate jurisdiction.

14. The Division Bench judgment of
the Bombay High Court in Maharashtra
Development Power Corporation (supra)
was a case where the Company Law
Board had passed an order against which
an appeal was filed before the learned
Single Judge under ''Section 10 F of the
Companies Act. Learned Single Judge
decided the appeal against which an
appeal was filed before the Division
Bench
under
Section
483
of
the
Companies Act. Before the Division
Bench of the Bombay High Court,
reliance was placed under Section 100A
C.P.C. which was amended w.e.f. July,
2002 excluding certain appeals. The
Division Bench of the Bombay High
Court relying on Section 4 C.P.C. held
that appeal was not barred. Following was
laid down in paragraphs 22 and 23 of the
judgment which is quoted below:

"22. We are also not inclined to accept
that Section 100-A of the Code of Civil
Procedure is the specific provision to the
contrary within the meaning of Section
4(1) of the said code which limits or
otherwise affects the right of appeal
provided under Section 483 of the
Companies Act which would be the
special law applicable. Firstly, what
Section 100-A bars is an appeal from the
judgment and decree of a single judge. In
the present case, the Company Court
exercising power under Section 10-F,
passes no judgment and decree. The
Company Court exercising jurisdiction
under Section 10-F, in the first place, is
not sitting in appeal from an original
decree
and
order
as
is
the
first
requirement of Section 100-A. The term
order in this context must mean an order
defined under Section 2(14) of the Code
which requires it to be that of the Civil
Court.
The
Company
Law
Board
exercising jurisdiction under Section 397
and 398 of the Companies Act is not a
Civil Court. Secondly, the order of the
company Judge in a 10-F Appeal is not a
judgment and decree within the meaning
of the Code of Civil Procedure. No other
provision to limit or affect the rights
under Section 483 is shown to us.
23. For the reasons stated above, we do
not find any merit on the objection to the
maintainability of this Appeal on the
points raised by Mr. Sibal. On other other
hand, on the merits of the appeal we find
arguable points. Hence, the Appeal is
admitted. "

15. The Apex Court recently had an
occasion to consider the provisions of
Section 100-A C.P.C. A Constitution
Bench of the Apex Court had occasion to
consider Section 104(1) and (2) and
Section 100-A C.P.C. as amended in P.S.
3 All] U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd. V. Official Liquidator & another
1181
Sathappan Vs. Andhra Bank Ltd. 2004
(11)
SCC
672.
The
question
for
consideration was as to whether Section
100-A also excluded Letters Patent
Appeal which was expressly saved under
Section 100 (4) (1) C.P.C. Following was
laid down in paragraphs 30 and 67 of the
judgment which are quoted below:

"30. As such an appeal is expressly saved
by Section 104(1). Sub-clause (2) cannot
apply to such an appeal. Section 104 has
to be read as a whole. Merely reading
sub-clause (2) by ignoring the saving
clause in sub-section (1) would lead to a
conflict between the two sub-clauses.
Read as a whole and on well established
principles of interpretation it is clear that
sub-clause (2) can only apply to appeals
not saved by sub-clause (1) of Section
104. The finality provided by sub-clause
(2) only attaches to Orders passed in
Appeal under Section 104, i.e. those
Orders against which an Appeal under
"any other law for the time being in force'
is not permitted. Section 104(2) would not
thus bar a Letters Patent Appeal. Effect
must also be given to Legislative Intent of
introducing Section 4, C.P.C. and the
words 'by any law for the time being in
force" in Section 104(1). This was done to
give effect to the Calcutta, Madras and
Bombay views that Section 104 did not
bar a Letters Patent. As Appeals under
'any other law for the time being in force'
undeniably include a Letters Patent
Appeal, such appeals are now specifically
saved. Section 104 must be read as a
whole and harmoniously. If the intention
was to exclude what is specifically saved
in sub-clause (1), then there had to be a
specific exclusion. A general exclusion of
this nature would not be sufficient. We
are not saying that a general exclusion
would never oust a Letters Patent Appeal.
However
when
Section
104(1)
specifically saves a Letters Patent Appeal
then the only way such an appeal could be
excluded is by express mention in 104(2)
that a Letters Patent Appeal is also
prohibited. It is for this reason that
Section 4 of the Civil Procedure Code
provides as follows:
"4. Savings.- (1) In the absence of
any specific provision to the contrary,
nothing in this Code shall be deemed to
limit or otherwise affect any special or
local law now in force or any special
jurisdiction or power conferred, or any
special form of procedure prescribed, by
or under any other law for the time being
in force.
(2)
In
particular
and
without
prejudice to the generality of the
proposition contained in sub-section (1),
nothing in this Code shall be deemed to
limit or otherwise affect any remedy
which a landholder or landlord may have
under any law for the time being in force
for the recovery of rent of agricultural
land from the produce of such land."
As
stated
hereinabove,
a
specific
exclusion may be clear from the words of
a statute even though no specific
reference is made to Letters Patent. But
where there is an express saving in the
statute/section itself, then general words
to the effect that 'an appeal would not lie"
or 'order will be final' are not sufficient. In
such case, i.e. where there is an express
saving,
there
must
be
an
express
exclusion. Sub-clause (2) of Section 104
does not provide for any express
exclusion. In this context reference may
be made to Section 100A. The present
Section 100A was amended in 2002. The
earlier Section 100A, introduced in 1976,
reads as follows:
"100A. No further appeal in certain
cases.-
Notwithstanding
anything
1182 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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 appellate decree or order
is heard and decided by a single Judge of
a High Court, no further appeal shall lie
from the judgment, decision or order of
such single Judge in such appeal or from
any decree passed in such appeal."
It is thus to be seen that when the
Legislature wanted to exclude a Letters
Patent Appeal is specifically did so. The
words used in Section 100A are not by
way
of
abundant
caution.
By
the
Amendment Acts of 1976 and 2002 a
specific exclusion is provided as the
Legislature knew that in the absence of
such words a Letters Patent Appeal would
not be barred. The Legislature was aware
that it had incorporated the saving clause
in Section 104(1) and incorporated
Section 4 in the C.P.C. Thus now a
specific exclusion was provided. After
2002, section 100A reads as follows:

"100A. 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."

To be noted that here again the
Legislature has provided for a specific
exclusion. It must be stated that now by
virtue of Section 100A no Letters Patent
Appeal would be maintainable. However,
it is an admitted position that the law
which would prevail would be the law at
the relevant time. At the relevant time
neither Section 100A nor Section 104(2)
barred a Letters Patent Appeal.
67. Once, however, a right of appeal
either in terms of sub-section (1) of
Section 104 or Letters Patent is availed of,
there would not be any further right of
appeal from the appellate order in view of
sub-section (2) of Section 104, for the
simple reason, that Letters Patent also
provides for only one appeal, i.e. from a
single Judge of a High Court to a Division
Bench. It may be true that in certain cases,
Letters Patent Appeals are available even
from an appellate order passed by a
learned single Judge of the High Court to
a Division Bench but the same was
permissible only when there was no bar
thereto and subject to the condition laid
down in clause 15 itself. We may notice
that when a first appeal or second appeal
was disposed of by a single Judge, a
Letters Patent Appeal had been held to be
maintainable therefrom only because
there existed no bar in relation thereto.
Such a bar has now been created by
reason of Section 100-A of the Code. No
appeal would, therefore, be maintainable
when there exists a statutory bar. When
the Parliament enacts a law it is presumed
to know the existence of other statutes.
Thus, in a given case, bar created for
preferring an appeal expressly cannot be
circumscribed by making a claim by
finding out a source thereof in another
statute."

16. The Apex Court in the above
judgment clearly laid down that Section
100-A as amended by 2002, Amendment
Act clearly indicated that legislature
which wanted to exclude Letters Patent
Appeal it specifically did so. Section 100A is also quoted below:
3 All] U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd. V. Official Liquidator & another
1183
"100A. 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 appellate decree or order
is heard and decided by a single Judge of
a High Court, no further appeal shall lie
from the judgment, decision or order of
such single Judge in such appeal or from
any decree passed in such appeal."

17. A perusal of Section 100-A
indicates that Section begins with nonobstante clause. Section provides (i)
Notwithstanding anything contained in
any Letters Patent for any High Court (ii)
or any other instrument having the force
of law and (iii) or in any other law for the
time being in force. The Section indicates
that where any appeal from an original or
appellate decree or order is heard and
decided by the learned Single Judge of the
High Court no further appeal shall lie
notwithstanding the above three situations
mentioned. The words "any other law for
the time being in force" shall also cover
the appeal under Section 483 of the
Companies Act. Thus, even if nothing can
be read in Section 483 excluding an
appeal against an order of learned Single
Judge of the High Court passed in
exercise of appellate jurisdiction before
the Division Bench, appeal against an
order of the learned Single Judge passed
in exercise of appellate jurisdiction is
excluded under Section 100-A Civil
Procedure Code. The Apex Court has
recently occasion to consider both Section
483 of the Companies Act as well as
Section 100-A C.P.C. in Kamal Kumar
Dutta & Anr. Vs. Ruby General Hospital
Ltd & Ors, 2006 (7) SCC 613.

18. In the above case, a petition
under Sections 397 and 398 of the
Companies Act was filed before the
Company Law Board. Company Law
Board
issued
several
directions
on
29/10/1999. Against which an appeal was
filed before the learned Company Judge
under Section 10 F of the Companies Act.
Learned Company Judge allowed the
appeal. Learned Single Judge set-aside the
order of the Company Law Board against
which order of the learned Single Judge,
Special Leave to Appeal was filed in the
Apex Court. One of the preliminary
objection was raised before the Apex
Court that the appellant had a right of
appeal under Clause 15 of the Letters
Patent Appeal before the High Court,
hence the appeal before the Supreme
Court be not entertained. In the above
context, the Apex Court examined the
preliminary objection. The Apex Court
noticed both the contentions that the
appeal before the Division Bench shall lie
under Section 483 of the Companies Act
as well as Clause 15 of the Letters Patent
Appeal. Following was laid down in
paragraph 23 which is quoted below:

"23.Therefore, where appeal has
been decided from an original order 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 10 F 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
1184 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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. Learned counsel for the
respondents invited our attention to a
letter from the then Law Minister. That
letter
cannot
override
the
statutory
provision. When the statute is very clear,
whatever statement by the Law Minister
made in the floor of the House, cannot
change the words and intendment which
is borne out from the words. The letter of
the Law Minister cannot be read to
interpret the provisions of Section 100A.
The intendment of the Legislature is more
than clear in the words and the same has
to be given its natural meaning and cannot
be subject to any statement made by the
Law Minister in any communication. The
words speak for itself. It does not require
any
further
interpretation
by
any
statement made in any manner. Therefore,
the power of the High Court in exercising
Letters Patent in a matter where a single
Judge has decided the appeal from
original order, has been taken away and it
cannot be invoked in the present context.
There is no two opinion in the matter that
when the CLB exercises its power under
Sections 397 and 398 of the Act, it
exercised its quasi-judicial power as
original authority. It may not be a court
but it has all the trapping of a court.
Therefore, the CLB while exercising its
original jurisdiction under Sections 397
and 398 of the Act passed the order and
against that order appeal lies to the
learned single Judge of the High Court
and thereafter no further appeal could be
filed."

19. The Division Bench of the
Bombay High Court in Maharashtra
Power Development Corporation Ltd., on
which the learned counsel for the
appellant
has
placed
reliance
was
specifically considered by the Apex Court
in the case of Kamal Kumar Dutta
(supra). In paragraph 25 it was laid down
that the said judgment does not lay down
the correct law. Following was laid down
in paragraph 25 which is quoted below:

"25. In this connection, our attention
was invited to a decision of the Bombay
High
Court
in
Maharashtra
Power
Development Corpn. Ltd. Vs. Dabhol
Power Co. In that case, the High Court
took the view that despite the amendment
in Section 100-A of the Code of Civil
Procedure, order passed by the Single
Judge in appeal arising out of the order
passed by CLB under Sections 397 and
398 of the Act, appeal lay to the Division
Bench and in that connection, the
Division Bench invoked Section 4 (1) of
the Code of Civil Procedure which says
that in the absence of any specific
provision to the contrary, nothing in this
Code shall be deemed to limit or
otherwise affect any special or local law
now in force or any special jurisdiction or
power conferred, or any special form of
procedure prescribed, by or under any
other law for the time being in force and,
therefore, the Division Bench concluded
that the letters patent appeal is a statutory
appeal and special enactment. Therefore,
appeal shall lie to the Division Bench. We
regret to say that this is not the correct
position of law. We have already
explained the facts above and we have
explained Section 100-A of the Code of
3 All] Sughar Singh V. State of U.P. and another
1185
Civil Procedure to indicate that the power
was specifically taken away by the
legislature. Therefore, the view taken by
the Bombay High Court in Maharashtra
Power Development Corpn. cannot be
said to be the correct proposition of law."

20. In view of the foregoing
discussion, it is clear that even if under
Section 483, there was no condition
prohibiting an appeal against an order of
the learned Single Judge passed in
appellate exercise of jurisdiction, the said
exclusion has been now specifically
provided in by the Legislature under
Section 100-A C.P.C. The judgment of
the Apex Court in Kamal Kumar Dutta
(supra) applies with full force in the facts
of the present case.

21. In the present case, the order
impugned was passed by the learned
Single
Judge
in
Civil
Misc.
Appeal/Objection
85/2007.
An
application for correction was moved in
the order which has also been rejected.
The learned Single Judge decided the
appeal/objection against the report of the
Official Liquidator exercising power
under Rule 164 of the Company Rules.

Rule 164 of the Company Rules is
quoted below:

"164. Appeal by creditor.-If a
creditor is dissatisfied with the decision of
the Liquidator in respect of his proof, the
creditor may, not later than 21 days from
the date of service of the notice upon him
of the decision of he Liquidator, appeal to
the Court against the decision. The appeal
shall be made by a Judge's summons,
supported by an affidavit which shall set
out the grounds of such appeal, and notice
of the appeal shall be given to the
Liquidator. On such appeal, the Court
shall have all the powers of an appellate
Court under the Code."

22. The application moved for
correction in the order passed in the
appellate exercise of jurisdiction by the
learned Single Judge clearly bars further
appeal
under
Section
483
of
the
Companies Act, as well as Letters Patent
as laid down by the Apex Court in the
case of Kamal Kumar Dutta (supra).

23. In view of the foregoing
discussion, the preliminary objection
raised by Shri Ashok Mehta is upheld and
this
appeal
is
dismissed
as
not
maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.67796 of 2009

Sughar Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rakesh Bahadur
Sri Praful Bahadur

Counsel for the Respondents:
Sri A.K. Saxena
Sri Gautam Baghel

U.P. Intermediate Education Act, 1921Chapter
III,
Regulation
4
&
22appointment of R-6-challenged after 8
years-ground of challenge being relative
of manager-admittedly R-6 is senior to
petitioner-only
for
purposes
of
deprivation from promotion-can not be