TaxTMI 
TaxTMI 
1987 (11) TMI 307
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....etition came to be disposed of on February 4, 1977, in accordance with a compromise arrived at between the parties. The said compromise comprised, inter alia, of two relevant paragraphs, for the present purpose, which read as follows: "1.Mrs. Arati Dutta will take over Chandana T. E. and Choudhury group will take over Martycherra T. E. on 25th January, 1976. 2.The bank liability of the company in respect of Marticherra T. E. amounting to Rs. 2,20,000 (approx.) shall be shared equally, of which Rs. 1,10,000 shall be paid by Mrs. Arati Dutta on 25th January, 1976, at Silchar in presence of Shri B. K. Das, Advocate, and Shri S. K. Sen, Advocate. 3.The entire liability of the company would be equally shared and for that purpose an independent, auditor shall be appointed by Shri S. K. Sen, Advocate, who shall undertake to start the accounting from the 1st week of February, 1976. 4.The shares owned by Mrs. Arati Dutta and her sons and daughters will be sold to the company on 25th January, 1976, and necessary permission shall be taken from Hon'ble High Court in this regard. 5.The staff salary and gratuity of the employees of the head office of the Hon'ble High Court is obtained shall....
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....he Delhi High Court to which we will refer. However, it is sufficient for the present purpose for us to refer to the observations of this court in Shanta Genevieve Pomtnerat v. Sakal Papers P. Ltd., AIR 1983 SC 269; [1985] 57 Comp Cas 469 , where this court observed that an appeal under sections 397 and 398, read with section 403, of the Companies Act would 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. This court made the following observations at page 269 of the report: "Now an order under sections 397, 398 and 403 of the Companies Act, on the face of it, cannot be said to be an order made or decision given, in the matter of the winding-up of a company. Relief, undoubtedly under section 397 and/or 398 is in fact an alternative to winding up. No doubt order under section 397 or 398 could be an order made or decision given by the High Court, having jurisdiction under the Companies Act, and, therefore, an appeal will lie to the Division Bench of the same High Court. This is not disputed. Chapter XLII of the Bombay High Court R....
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....Pending the winding-up petitions, the company judge heard the two applications together and passed a common order for removal of the sole director and constitution of a board of directors with a retired judge as the chairman. Appeals -were taken to a Division Bench against another order of the company judge. It was held, overruling the preliminary objections, that the order passed by the company judge was appealable under section 483 of the Companies Act, 1956, because, firstly, any order passed under section 397 or section 398 was one which was passed in lieu of winding up and hence, it was "in the matter of winding up" and, secondly, the order passed in C. A. No. 323 of 1971 expressly fell within the scope of section 442 as the order had been passed after at least two applications had been filed for the winding up of the company. The court further held that there was nothing in section 483 of the Companies Act, 1956, which took away or curtailed the right of appeal provided by section 5(1) of the Delhi High Court Act, 1966, and clause 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 Cour....
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.... of the single judge would lie to the Division Bench. This, in our opinion, follows logically from the ratio of the decision of this court in Shankarlal Aggarwala v. Shankarlal Poddar [1965] 35 Comp Cas 1 , 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 the absence of the procedural rules does not take away a litigant's right to file such appeals when the statute confers such a right specifically and also the jurisdiction of the High Court to dispose of such an appeal if so filed. We, therefore, propose to deal with the decision of the High Court. Here, we are further helped by the fact that there is an appeal from the decision of the learned single judge, being Civil Appeal No. 1511 of 1987. In either view of the matter, the view taken by the High Court is before us. As noted, the learned single judge was asked by the parties by agreement to compute the liabilities in view of the failure of the parties ....
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....was directed to be paid at the time of the admission of the appeal by the Division Bench of the High Court. If that money has been paid or realised by the respondent, the appellant would pay the balance amount of Rs. 6,81,299 67 and if the money is paid, the respondent will, by virtue of this order, be entitled to withdraw the same and give credit to the appellant for the same. The balance sum will be paid by March 15, 1988. In default of payment by that date, the amount will carry 18% interest. The appeal is disposed of accordingly by so holding. In view of the aforesaid position, decision in C.A. No. 1511 of 1987 which is from the decision of the learned single judge no longer survives and is disposed of accordingly. SLP(c) No. 8152 of 1987 which is a cross-petition filed against the decision of the Division Bench of the Gauhati High Court no longer survives and is disposed of accordingly. Parties will pay and bear their own costs. Annex Hansaria, J.-A petition was filed by the appellant under sections 397 and 398 read with section 403 of the Companies Act, 1956, hereinafter, "the Act", against Shri Prasenjit Choudhury and Smt. Pritilata Choudhuri alleging oppression by the ....
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....f the company at Rs. 27,24,926.09 including the gratuity payable to the employees, and he further stated that each of the parties to the agreement would have to bear 50% of the above liability as per the terms of the compromise embodied in the order of the court passed earlier. This amount was not agreed to by the appellant and hence an application was filed by the Tea Estate under section 634 of the Act to execute the order passed by this court on February 4, 1976, in Company Petition No. 6 of 1975. This application came to be registered as Company Application No. 3 of 1976. Efforts were made during the pendency of this petition to see if any auditor could fix and find out the "entire liability" of the company as on January 24, 1976. The efforts, however, failed. The parties thereafter agreed to settle the "entire liability" on the basis of the balance-sheet of the company as on December 31, 1973. By the impugned order dated January 27, 1984, the learned single judge has found out that in terms of the aforesaid balance-sheet, the appellant has to pay a sum of Rs. 8,85,370.24 to the company in full discharge of her share of liability. Feeling aggrieved at the fixation of the liabil....
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....ggarwala v. Shankarlal Poddar [1965] 35 Comp Cas 1 (SC) is more enlightening on this aspect of the case. Though that decision has dealt with this aspect of the matter in the context of the Indian Companies Act, 1913, the ratio of the same has to apply to an appeal provided by section 483 of the Act inasmuch as the language of section 202(old) is in pari materia with section 483 of the present Act. In Shankarlal's case [1965] 35 Comp Cas 1, the Supreme Court was seized of the interpretation of section 202 of the old Act and was confronted with two different views expressed relating to section 212-one by the Calcutta High Court in Madan Gopal Daga v. Sachindm Nath Sen, AIR 1928 Cal 295, wherein it was held that an "order or decision made or given in the matter of winding up of a company" to be appealable must satisfy the requirement of clause 15 of the Letters Patent. This interpretation of section 202 was not accepted by the other High Courts. The leading case in support of the other view is Bachharaj Factories Ltd. v. Hirji Mills Ltd. [1955] 25 Comp Cas 227 {Bom), wherein Chagla C. J., speaking for the Bench, held that keeping in view the fact that the courts which dealt with windi....
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.... P. Ltd. v. Shanti Chandra Bajna [1970] 40 Comp Cas 1128 (SC) and to Gokulchand D. Morarka v. Company Law Board [1974] 44 Comp Cas 173 (Delhi), to buttress his submission. In view of what has been stated in the aforesaid decisions, there cannot be any manner of doubt that an appeal does lie from the impugned order. This is not disputed by Shri Talukdar. The real question is regarding the forum to which the appeal would lie. Now, as per section 483 the appeal shall lie to the "same court to which...appeals lie from any order or decision of the court in cases within its ordinary jurisdiction". No provision has been brought to our notice which states that an appeal would lie to a Division Bench from any order or decision of a single judge of this court in cases within its ordinary jurisdiction de hors what has been stated in the Letters Patent. Dr. Ghosh has solely, relied on what has been observed in para 5 of Sakal Papers' case [1985] 57 Comp Cas 469 (SC), wherein it was stated that an appeal will lie against an order passed under sections 397 and 398 to the Division Bench of the same High Court. This observation was not disputed by any of the parties before the court, and it may b....
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....y which was shown as Rs. 11,53,567.19 in the balance-sheet of December 31, 1973, could not be taken to be the liability as in January, 1976, as accepted by the learned single judge, inasmuch as in the balance-sheet as on December 31, 1975, the total liability payable to the bank had stood at about Rs. 2.58 lakhs only which alone represented the bank liability payable by the parties. Similarly, as regards the liability of the Assam Financial Corporation, Tea Board and the Assam Agro-Industrial Development Corporation, a comparison of the two balance-sheets shows that a sum of Rs. 77,431.25 had been paid between December, 1973, and December, 1975. According to Dr. Ghosh, half of this amount, i.e., Rs. 38,755.63 has to be deducted from the total liability fixed by the learned single judge. This apart, as the appellant had admittedly paid a sum of Rs. 1,10,000 after the compromise, learned counsel concluded that if credit is given for the aforesaid sums, the balance amount due from the appellant would be to the extent of about Rs. 2.7 lakhs. Another alternative argument was also advanced by Dr. Ghosh. According to him, if para 3 of the compromise petition referred to net liability, no....