TaxTMI 
TaxTMI 
2019 (10) TMI 1396
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.... with regard to jurisdiction of entertaining winding up petition at Allahabad and holding that Defaulting Company/Appellant is unable to pay its debts, hence it is just and equitable to wind up the same and consequently directing for winding up of Company and appointing Official Liquidator as Liquidator of Company. The jurisdictional issue raised is that winding up petition was within the jurisdiction of Judges sitting at Lucknow and not at Allahabad, therefore, there is an inherent lack of jurisdiction in respect of subject matter of winding up, hence, order of winding up is illegal and void, but this objection has been rejected by learned Single Judge. Learned Single Judge has also restrained Defaulting Company/Appellant from transferring, alienating and encumbering any assets of Company and Official Liquidator has been directed to take over possession of assets of Company. 2. Facts in brief giving rise to present appeal are, that, Defaulting Company/Appellant, a Public Limited Company, was incorporated in October 1978 under the provisions of Act, 1956. Certificate of registration was issued by Registrar of Companies, Kanpur. Its Registered Office is at A/2, Site No.2, Industr....
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....meeting of PICUP on 14.05.2002. 6. Another Financial Institution i.e. Syndicate Bank, respondent 5, initiated recovery proceedings before Debt Recovery Tribunal (hereinafter referred to as "DRT") in T.A.No.165 of 2002 and 261 of 2002. 7. Respondent 4 i.e. IIBI also initiated recovery proceedings, filed Original Application No.05 of 2003 in DRT, Lucknow for recovery of Rs. 58469876/-. 8. Learned Company Judge, in modification of earlier order dated 07.08.2000, whereby schedule of repayment was sanctioned, passed order dated 15.10.2003, but nothing could proceed further since factory premises was attached by District Magistrate, Rae Bareilly for effecting recovery of tax dues under recovery certificate issued by Trade Tax Authorities against Defaulting Company/Appellant. 9. Company Judge on an application of Defaulting Company/Appellant, passed an order on 11.11.2003 and clarified its order dated 15.10.2003 whereupon Company approached State Government who decided to withdraw Recovery Certificate issued by Tax Authorities. Consequently, District Magistrate revoked attachment of factory premises on 21.01.2004. 10. Defaulting Company/Appellant giving an impression that i....
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.... Act, 1956 and also a "Public Financial Institution", as defined under Section 4-A of Act, 1956. Under Assignment Deed dated 28.04.2011, IIBI assigned and transferred the deeds and documents guaranteed together with all underlying securities, interest thereto and all its rights, title and interest in all agreements, deeds, documents and benefits etc. to M/s IFCI Ltd. Therefore, vide order dated 02.04.2012 substitution was allowed and M/s IIBI stood substituted by M/s IFCI Ltd. i.e. respondent 4. 15. Respondent 2 i.e. PICUP has filed a short counter affidavit stating that Defaulting Company/Appellant has been lingering proceedings not only before BIFR, but even before this Court for more than one and half decade. PICUP and other respondents accepted OTS-cum-Rehabilitation Scheme in pursuance whereof Defaulting Company/Appellant was to pay Rs. 82,15,000/- to PICUP, but it could pay only Rs. 10,31,257/- and Rs. 71,83,673/- remained unpaid, which became Rs. 1,41,73,000/- with interest as on 31st October, 2007. This shows that Defaulting Company/Appellant committed default despite Creditors having agreed for OTS-cum-Rehabilitation Scheme. Defaulting Company/Appellant could not discha....
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....bonafide on its part. This Court (Company Judge) modified order dated 07.08.2000 by order dated 15.10.2003, but even then it was not complied with though Bank's suit i.e. T.A. no.261 of 2002 before DRT was disposed of in terms of this Court's order dated 15.10.2003, vide order dated 28.07.2005. Defaulting Company/Appellant having no intention to comply orders, in a mischievous way, filed Writ Petition No.2895 of 2006 (M/S) before Lucknow Bench in which an interim order was passed by learned Single Judge (Hon'ble Rakesh Sharma, J) on 12.06.2006 staying order of DRT passed in Case No.TA 261 of 2002 and also restraining all opposite parties therein from taking any coercive action against Defaulting Company/Appellant during pendency of that writ petition. Further, on an application moved by Bank for recall of order dated 15.10.2003, this Court (Hon'ble S. U. Khan, J) passed order on 05.04.2007 recalling order dated 15.10.2003, making a clear observation that perusal of different orders starting from 07.08.2000 to 09.02.2007 show that Defaulting Company/Appellant has got absolutely no intention of paying any amount. Application of Defaulting Company/Appellant of raising ....
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.... the matter of High Court is governed by constitutional provisions and if there is any lack of territorial jurisdiction the order would be void. Placing reliance on Supreme Court's judgment in Sri Nasiruddin vs. State Transport Appellate Tribunal, 1975(2) SCC 671, Manju Verma (Dr.) Vs State of U. P. and others, 2005 (1) SCC 73, and Division Bench judgment of this Court in Registrar of Companies, U. P. and Uttranchal, Kanpur vs. M/s Kamal Infosys Ltd. And others (supra) and Sumac International Services Limited vs. P.N.B. Capital Services Limited, AIR 1997 (Allahabad) 424, he submitted that learned Company Judge has erred in law in rejecting application submitted by Defaulting Company/Appellant raising objection in regard of jurisdiction, therefore, judgment of learned Single Judge is erroneous, illegal and without jurisdiction, hence, liable to be set aside. He further contended that even on merits, learned Single Judge has mechanically followed opinion of BIFR instead of applying its own mind, therefore, order of winding up is illegal and liable to be set aside. In support thereof, reliance is placed on Supreme Court's judgment in V. R. Ramaraju Vs. Union of India and other....
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....er availing several orders in favour of appellant and at a much later stage. With regard to such belated objection reliance is placed on Supreme Court's judgments in R.S.D.V. Finance Company Private Limited vs. Shree Vallabh Glass Works Limited, 1993 (2) SCC 130; Om Prakash Agarwal (since deceased) through legal heirs and others Vs. Vishan Dayal Rajpoot and another, 2019 (Allahbad Civil Journal) 3 (SC) and Competition Commission of India vs. Bharti Airtel Limited and others, 2019 (2) SCC 521. 21. We have considered rival submissions of parties, perused record and also relevant authorities and statutory provisions, very carefully, and looked into entire matter in depth. 22. In support of submissions with respect to jurisdiction learned Senior Counsel has placed reliance on Supreme Court's judgment in Sri Nasirruddin (supra) at length and also historical backdrop of Courts at Lucknow and Allahabad, which ultimately resulted in amalgamation and functioning of High Court at Lucknow and Allahabad. 23. Submissions advanced by learned Senior Counsel of respective parties, in our view give rise to following issues :- (I) Whether "Permanent Seat" and "Principal Sea....
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....d pressing their demand in respect of certain cases, arising from particular area, whether admissible at Lucknow or Allahabad. In our view, it is high time when this aspect needs be considered threadbare so as to settle dispute for all times to come, to mitigate rivalry among two sections of officers of this Court practising at these two places and also in the interest of litigants at large. 26. For history, development and growth of Courts, including High Court, it is not necessary to go into Moghal system of dispensation of justice, instead it will be appropriate to have a brief re-look from the stage of growth of power of Britishers, firstly with East India Company and thereafter, British Government. In fact at the time of independence we had the system of administration of justice as developed by Britishers and we have maintained that inheritance with some changes as found necessary in the light of the provisions of Constitution of India which came into force on 26th January 1950. For having a retrospect of historical development of judicial system initiated and developed by Britishers, fortunately we have information in the form of publication of certain official momentos b....
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....cases according to rules of equity and good conscience and laws and customs of merchants. 31. By Charter of 1687 'East India Company' established a Mayor's Court at Madras. It consisted of twelve Aldermen and sixty or more Burgess. After settlement of Calcutta founded by Job Charnoc in 1690 there was gradual increase of British population in India. A necessity was felt for having Courts which may dispense justice to Britishers in accordance with English law. There was diverse legal frameworks working in British settlements. Charter of 1726, therefore, came to be issued providing for establishment of 'Corporation' in each presidency town. It also established 'Mayor Court' at all three presidencies i.e. Madras, Calcutta and Bombay. These Courts were having jurisdiction in civil matters including 'Testamentary' and 'Probate Wills' but criminal matters were left to be decided by and within the jurisdiction of Governorin- Council which acted as Court in such matters. It also made a provision for Second Appeal to King and Council. Under this Charter, First Appeal could be filed before Governor and Council, and Second Appeal could be taken to....
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.... intended purpose, a change was brought in. Criminal Courts were continued in several Divisions subject to superintendence of Naib Nazim but English Judges of Dewani Adalats were appointed as Magistrates with power to take cognizance of offences, apprehend their perpetrators and commit them to nearest Criminal Court for trial. Interestingly, these English Magistrates had no effective role over Zamindars and Landholders. On 27.06.1787, Magistrates were vested with authority to decide, upon complaints, petty offences such as petty affrays, abusive names etc. 36. On 03.12.1790, Regulations were passed whereby 'Courts of Circuit' under superintendence of English Judges, assisted by persons well versed in Mohammedan Law, were established for trying, in the first instance, cases of crimes and misdemeanours. Regulations with regard to Criminal Courts were consolidated and re-enacted in Regulation IX of 1793. Revenue Adminstration 37. Revenue Administration owed its origin to the grant of Dewani whereby 'East India Company' had become responsible for collection of Revenue in view of grant, it held, from the then Moghal Emperor. Prior to 1771, task of settlement and....
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..... The territory around Banaras was ceded to 'East India Company' by Nawab Vazir of Awadh/Oudh in 1775. In 1781, Court of Justice vested with Criminal jurisdiction was established in the city of Banaras. In 1788, Courts with similar powers were established in districts of Ghazipur, Jaunpur and Mirzapur. Resident at Banaras was to act as Magistrate throughout the Province of Banaras. By Regulation XVI of 1795, Judges of Dewani Adalats, which were established in the same year in the city of Banaras and above mentioned three districts, were empowered to act as Magistrates within their jurisdiction and this power which was being exercised by Resident at Banaras was resumed from him. 'Court of Circuit' having similar powers as those in Bengal for trial of serious offences, was created by same Regulations in Banaras. This Court was subordinate to 'Sadar Nizamat Adalat' of Bengal. 42. Regulation VII of 1795 caused establishment of 'Civil Courts' in Banaras Province. City court in Banaras and three Zillah Courts (District Courts) in Jaunpur, Mirzapur and Ghazipur were established. The jurisdiction, power and authority enjoyed by similar courts in Bengal we....
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....lation IV of 1803, a 'Provincial Court of Appeal' was established at Bareilly for exercising appellate jurisdiction over these Zillah Courts (District Courts). Appeals against decisions of Provincial Courts of appeal was admissible in 'Sadar Dewani Adalat of Bengal'. Out of the territories ceded by Peshwa and Daulat Rao Sindhia, six Districts were formed by Regulation IX of 1804. 45. By Regulation VIII of 1805 five new Districts were formed out of conquered provinces, within the Doab and on the right bank of Jamuna, excepting Delhi, as also out of the territory of Bundelkhand ceded by the Peshwa. These districts were Aligarh (at that time Allyghur), Northern Zilla of Saharanpur, Southern Zilla of Saharanpur, Agra and Bundelkhand. By same Regulations, Zilla Courts/District Courts were established in these districts. Two parts of Saharanpur, however, were amalgamated in 1806. Appeals from these Zilla Courts/District Courts, lay to Provincial Court established by Regulation IV of 1803 and further appeals to Sadar Dewani Adalat of Bengal. 46. In 1817, Dehardun and Kumaon, which were acquired from Nepal, were brought under above legal system vide Regulations IV and....
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....arrangement with 'East India Company' and for better government of His Majesty, Indian territory. Vide Section 38 of G.I. Act, 1833, territories which were subject to government of Presidencies of Fort William in Bengal were divided in two and another Presidency was constituted as 'Presidency of Agra'. Power to divide territories in the newly constituted Presidencies vis-à-vis existing Presidency was conferred upon Board of Directors of 'East India Company'. 51. In 1836, 'North-Western Provinces' was formed out of the territory around Banaras ceded by Oudh/Avadh in 1775, other territories ceded in 1801, conquered territories acquired from Maharaja of Sindhia in 1803, a portion of Bundelkhand acquired from Peshwa and territory then known as the hill districts acquired in 1816 from Nepal. The ceded territories covered greater portion of Uttar Pradesh. Sagar and Narbada territories ceded by Rulers of Nagpur, also became part of 'North Western Provinces'. 52. Jhansi which lapsed to East India Company in 1853, became part of North Western Province. Delhi territory which also formed part of the North Western Provinces, later transferre....
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....lahabad. 57. With regard to Avadh/Oudh, as we have already noticed, a Judicial Commissioner was appointed for disposal of Civil and Criminal cases. Court of Appeal was established in Lucknow in 1856 with a Judicial Commissioner. Initially there was only one Judicial Commissioner but he was not the highest Court of Appeal in rent and revenue cases. System of dispensation of justice in Oudh/Avadh was different for the reason that Regulations of Bengal did not apply to Oudh/Avadh. Hence like other Non Regulation Provinces, it also remained None Regulation Territory. 58. After annexation in 1856, various grades of posts were established vide Act XIV of 1865, similar to those provided for Central Provinces under the same Act. The aforesaid Act was framed chiefly with reference to Central Province. It was found incomplete and inconvenient as regards Oudh/Avadh. 59. Accordingly, in 1871, Oudh Civil Courts Act (Act No.XXXII of 1871) was passed by Governor General-in-Council to consolidate and amend laws relating to Civil Courts in Avadh. Besides constituting Civil Courts in a reformed shape, Judicial Commissioner's Court was reconstituted as the highest Court. Five grades of C....
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..... Civil Courts, on the lines of those in the North- Western Provinces, were established in Oudh/Avadh by Act No.XIII of 1879, which was amended by Act No.XVI of 1891. The same established following grades of Civil Courts in Oudh/Avadh : (i) Court of Judicial Commissioner (ii) Court of District Judge (iii) Court of Subordinate Judge (iv) Court of Munsif 64. Since, work was on increase, by subsequent enactments i.e. Act IV of 1885, power was given to make temporary appointments and thereafter by Act XIV of 1891, Oudh Courts Act, provision was made for appointment of permanent 'Additional Judicial Commissioner', equal in status but not in emoluments to 'Judicial Commissioner'. By Act XVI of 1897, provision was made for Second Additional Judicial Commissioner but salary between Judicial Commissioner and Additional Judicial Commissioner remained different i.e. Rs. 3500/- per mensem to Judicial Commissioner and Rs. 3333/- per mensem to Additional Judicial Commissioner. 65. Thereafter in 1902, new name to two Provinces was given i.e. "United Province of Agra and Oudh". It became 'Uttar Pradesh' on 24.01.1950 under United Pr....
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....referred to as "U. P. Act, 1925"). The local legislature of United Provinces of Agra and Oudh passed U. P. Act of 1925 and it received assent of Governor of United Provinces of Agra and Oudh on 03.04.1925 and Governor General on 04.05.1925. It was published under Section 81 of G.I. Act, 1915-1919 on 16.05.1925. Preamble of U. P. Act, 1925 stated that it was enacted to amend and consolidate the laws relating to the Courts in Oudh. Section 3 of Act, 1925 provided that on and from commencement of said Act there shall be established for Oudh a 'Chief Court' referred to as "Chief Court". 70. Section 4 of Act, 1925 talked of constitution of Chief Court and provides that "Chief Court" shall consist of a Chief Judge and four or more Judges who shall be appointed by Governor General-in-Council. The Judges including 'Chief Judge' were to be appointed from three sources namely :- "(a) Barristers, Advocates and Vakils of a High or Chief Court including the former Judicial Commissioner's Court in Oudh of not less than ten years' standing; at least two. (b) Members of the Indian Civil Service of not less than ten years' standing, and having for at....
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....tion shall have effect as if the new court were mentioned therein in lieu of the court or courts so replaced. (2) The provisions of this chapter shall apply to every High Court in British India." (emphasis added) 74. Therefore, 'Chief Court in Oudh' was included within the meaning of 'High Court' by G.I. Act, 1935. Section 229 of G. I. Act, 1935 gave power to British Crown to constitute a High Court by Letters Patent for any Province or any part thereof or reconstitute, in like manner, any existing High Court for that Province or for any part thereof or where there are two High Courts in that Province, amalgamate that Courts. Section 229 reads as under : "229.-(1) His Majesty, if the Chamber or Chambers of the Legislature of any Province present an address in that behalf to the Governor of the Province for submission to His Majesty, may by letters patent constitute a High Court for that Province or any part thereof or reconstitute in like manner any existing High Court for that Province or for any part thereof, or, where there are two High Courts in that Province, amalgamate those courts. (2) Where any Court is reconstituted, o....
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....d became Chief Justice of Amalgamated High Court i.e. "New High Court". Article/Clause 5 (2) provided the order of other Judges i.e. Chief Judge of High Court in Oudh/Avadh, Puisne Judges of High Court in Allahabad and Puisne Judges of Chief Court in Oudh/Avadh and additional and acting Judges. It says that firstly, the former Chief Judge of High Court in Oudh/Avadh and former Puisne Judges of the High Court in Allahabad, shall be placed according to the priority of their respective appointments in their capacity and thereafter, former Puisne Judges of Chief Court in Oudh/Avadh according to the priority of their respective appointments shall be placed. 78. Article/Clause 5 (3) of U. P. High Courts (Amalgamation) Order, 1948, provided an order of Additional and Acting Judges according to priority of their respective appointments in either of the existing High Courts. All existing staff i.e. Officers and servants of existing High Courts were declared as deemed to have been appointed in corresponding position in the "New High Court", on the same terms and conditions. 79. Article/Clause 7 of U. P. High Courts (Amalgamation) Order, 1948, provided jurisdiction of "New High Court" a....
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....However, Chief Justice of "New High Court" was also given power by proviso to allow provisions with modifications in respect of practice and procedure in the "New High Court"sitting at Lucknow. Article/Clause 9 of Order, 1948, reads as under : "9. Subject to the provisions of this Order, the law in force immediately before the appointed day with respect to practice and procedure in the High Court in Allahbad shall, with the necessary modifications apply in relation to the new High Court and accordingly that hiogh Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court in Allahabad: Provided that any rules or orders which are in force immediately before the appointed ay with respect to practice and procedure in the High Court in Allahabad shall, until varied or revoked by rules or orders made for the new High Court, apply with the necessary modifications in relation to practice and procedure in the new High Court as if made by that Court: Provided further the Chief Justice may, in his discretion order that any rules or orders which were in for....
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.... of U. P. High Courts (Amalgamation) Order, 1948. 88. Then comes Article/Clause 14 of Order, 1948, which talked of sitting of "New High Court" and it 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 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 nubmer, 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." (emphasis added) 89. Article/Clause 15 of U. P. High Courts (Amalgamation) Order, 1948, applied laws in respect of appeals to His Majesty in Council or to Federal ....
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.... says that in the alternative, it may be such other places in the United Province as the Chief Justice with approval of Governor of United Province, appoints. First Proviso to Article/Clause 14 says that unless Governor of United Province with the concurrence of Chief Justice, otherwise directs, such Judges of "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 jurisdiction in respect of cases arising in such areas in Oudh/Avadh, as the Chief Justice may direct, jurisdiction and power for the time being vested in the "New High Court". 93. A bare reading of Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948, shows that general provision in respect of sitting of "New High Court" is at Allahabad or such other places in the United Provinces as the Chief Justice with approval of Governor of United Provinces, appoints. First proviso, however, makes an exception in respect of Lucknow. It provides that unless Governor of United Provinces, in concurrence with the Chief Justice, otherwise directs, such Judges of "New High Court" but not less than two, as nominated by Chief Justice, ....
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....arger Bench and fifth was formulated by Larger Bench itself and these five questions were as under :- "(1) Can a case falling within the jurisdiction of the Lucknow Bench of this Court be presented at Allahabad? (2) Can the judges sitting at Allahabad summarily dismiss a case presented at Allahabad pertaining to the jurisdiction of the Lucknow Bench? (3) Can a case pertaining to the jurisdiction of Lucknow Bench, presented and entertained at Allahabad, be decided finally by the judges sitting at Allahabad, without there being an order as contemplated by the second proviso to Article 14 of the U. P. High Court (Amalgamation) Order, 1948? (4) What is the meaning of the expression "in respect of cases arising in such areas in Oudh" used in first proviso to Article 14 of the High Court (Amalgamation) Order, 1948? Has this expression reference to the place where the case originated or to the place of the sitting of the last court or authority whose decree or order is being challenged in the proceedings before the High Court? (5) Whether this writ petition can be entertained, heard and decided by the Judges sitting at Lucknow?" 98. Ab....
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....espect of area of Oudh/Avadh and this Court said that Chief Justice can even reduce area to the extent of abolition of sitting of Judges at Lucknow and allocation of jurisdiction shall also be in the domain of Chief Justice. Further, Second Proviso was read by this Court that Chief Justice can pass such an order in respect of cases within jurisdiction of Lucknow to be filed at Allahabad or in a pending case to be transferred at Allahabad to be heard thereat. This Court said that the word 'heard' in Second Proviso applies not only to pending cases but also to cases which are yet to be filed. This Court also said that if an appeal or revision is filed to an authority within area of Lucknow, though original proceedings had arisen in an area outside the jurisdiction of Judges sitting at Lucknow, then writ petition under Article 226 would lie in the High Court depending on original area where cause of action has arisen and not because appellate or revisional order was passed by authority sitting in jurisdiction of Judges at Lucknow. These parts of findings were not found correct by Supreme Court. In para 27 of judgment in Sri Nasiruddin (supra), Court held that reasoning of High....
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....39;s Branch at Bhopal in terms of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "Act, 2002") promulgated by Parliament. Vires of Act, 2002 was challenged in Writ Petition at Delhi High Court which was dismissed on the ground of territorial jurisdiction and matter came to Supreme Court. Supreme Court said that mere passing of legislation by itself would not confer any right to file writ petition unless a cause of action arises therefor. A parliamentary legislation when received assent of President and published in official gazette unless specifically excluded will apply to entire territory of India. If passing of a legislation would give rise to a cause of action, a writ petition questioning constitutionality thereof can be filed in any High Court of the country. However, it is not correct for the reason that the cause of action will arise only when provisions of Act or some of them which are implemented shall give rise to civil or evil consequences of a party for the reason that Writ Court would not determine a constitutional question in vaccum. Court must have requisite territorial jurisdiction and ....
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.... and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority." (emphasis added) 102. The above findings in Sri Nasiruddin (supra) show that Supreme Court held that it is in the prudence of the authorities to decide whether seats at Allahabad as well as Lucknow will be changed. Both places may continue and both places may be changed. Court clearly said that Lucknow is the seat of Government and Allahabad has history of having High Court there, before U. P. High Courts (Amalgamation) Order, 1948. Further, Lucknow was principal place of Oudh/Avadh. U. P. High Courts (Amalgamation) Order, 1948 aimed to give status to Oudh Chief Commissioner's Court as that of High Court. Court said that it is difficult to foresee what will happen in future whether aut....
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...."Principal" (1) Collins Cobuild Advanced Learner's English Dictionary, Fourth Edition, Page-1134 :- "Principal-Principal means first in order of importance" (2) Black's Law Disctionary, Eighth Edition, Page-1230 :- "Principal-Chief, primary, most important, one who authorizes another to act on his or her behalf as an agent." (3) Dr. A. R. Biswas Encyclopaedic Law Dictionary (Legal and Commercial), 3rd Ediction 2008, Page-1156 :- "Principal-the person for whom an act is done by the agent is called 'principal'; a person who employs an agent to do some act for him." (4) P Ramanatha Aiyar's The Law Lexicon, The Encyclopaedic Law Dictionary, Fourth Edition, Page-1489 :- "Principal-One who employs another to act for him subject to his general control and instruction; the person from whom an agent's responsibility is derived; 'Principal' means highest in rank, authority, character, importance, or degree; most considerable or important; chief; main (as) the principal officers of a government, the principal men of a state, the principal productions of a country, the principal arguments in....
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....uch cases is conferred upon Chief Justice. We do not find any otherwise provision for such transfer of cases. (III) Administrative control is also broadly in the Secretariat of High Court i.e. Registrar General at Allahabad, which governs entire State of U. P. (IV) When new High Court was constituted, Chief Justice of High Court at Allahabad was given status of "Chief Justice" of "New High Court" while "Chief Judge" of "Chief Court of Oudh" became a "Puisne Judge", though senior-most among Puisne Judges. This also shows difference in status of two places, which was conceived even by U. P. High Courts (Amalgamation) Order, 1948. 107. We, therefore, have no hesitation in holding that the question, whether seat at Allahabad is 'permanent' or not, stands answered by decision in Sri Nasiruddin (supra) and it cannot be said that Allahabad, as per provisions of U. P. High Courts (Amalgamation) Order, 1948 is a 'Permanent Seat' of this Court, but it cannot be doubted that seat at Allahabad is 'Principal Seat' of "New High Court" which came into existence as a result of amalgamation, under U. P. High Courts (Amalgamation) Order, 1948. 108. To ....
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....se or decrease of areas." (emphasis added) 111. Court also held in para 33 with reference to Article/Clause 7 of U. P. High Courts (Amalgamation) Order, 1948 that thereunder "New High Court" has jurisdiction in respect of whole province. Article/Clause 14 deals with seats of High Court at Allahabad and Lucknow. It is only First Proviso to Article/Clause 14 of Order, 1948, which provides that unless Governor with concurrence of Chief Justice directs otherwise not less than two Judges shall sit at Lucknow in order to exercise in respect of cases arising in such areas at Oudh/Avadh, the jurisdiction and power vested in the "New High Court". Then Court further said as under : "The first proviso to paragraph 14 of the Order specifies the instrumentality through which the jurisdiction vested in the new High Court will be exercised in respect of cases arising in Oudh. The direction which the Chief Justice has given once with regard to the areas in Oudh remains unaltered." (emphasis added) 112. Supreme Court also said that for exercise of power with respect to territorial jurisdiction in the matters to be taken by Judges sitting at Lucknow, first part of Se....
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.... if it is within area of Oudh/Avadh then it can be filed at Lucknow otherwise at Allahabad, has also been reversed by Supreme Court. It has held if cause of action arose because of appellate order or revisional order which came to be passed at Lucknow, then Lucknow would have jurisdiction though original order was passed at a place outside the areas in Oudh/Avadh. Supreme Court, therefore, has summarized its conclusions in respect of above findings of Larger Bench of this Court, which have been reversed, as under : "(1) There is no permanent seat of High Court at Allahabad. Seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. (2) Chief Justice has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice, then there is no scope for changing the area thereafter. (3) Chief Justice has power under second proviso to Clause 14 of Order 1948 to direct that any case or class of cases arising in Oudh areas shall be heard at Allahabad. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion ....
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....ugh Government of India Acts were enacted from time to time and first one, being Government of India Act, 1800, was enacted with further Regulations for establishing British domain in India and better administration of justice within the same, but Chartered High Courts established under the provisions of Indian High Courts Act, 1861 came to be governed together for the first time by Government of India Act, 1919 i.e. 1915-1919 and Section 101 thereof provided that High Courts referred to in the said Act are such which were established in British India by Letters Patent. 118. By Section 130 of G.I. Act, 1915-1919, Acts specified in Fourth Schedule were repealed and Indian High Courts Act, 1861 and Indian High Courts Act, 1865 in entirety were repealed. The G.I. Act, 1915-1919 obviously did not cover Judicial Commissioner's Court for Oudh Province. 119. However for the first time, G. I. Act, 1935 while declaring as to which Court shall be deemed to be High Courts for the purpose of G. I. Act, 1935, declared, besides others, existing High Courts, to include Chief Court of Oudh also. This status conferred upon Chief Court of Oudh as a 'High Court' came to be recognize....
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....g to the second question with regard to jurisdiction conferred in respect of 'Company Judge', we find that certain Notifications under Article/Clause 14 have been issued in exercise of powers under U. P. High Courts (Amalgamation) Order, 1948 and relevant Notifications are dated 26.07.1948, 15.07.1949, 02.07.1954, 05.08.1975, 04.01.2003 and 14.01.2003. 123. The earliest order passed by Chief Justice in purported exercise of power under Article/Clause 9 of U. P. High Courts (Amalgamation) Order, 1948 is Notification dated 26.07.1948 and it reads as under : "In exercise of the powers conferred by Article 9 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 26th of July, 1948, until further orders, the following provisions of the rules of the Chief Court of Avadh at Lucknow and Appendices shall apply in relation to the Bench at Lucknow in supersession of the rules of the High Court of Judicature at Allahabad governing the matters covered by these provisions subject to the modifications hereinafter mentioned : The whole of Chapter IV. T....
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....ion) Order, 1948 and reads as under : "No.6984/Ib-39.-In exercise of the powers conferred by Article 14 of the U. P. High Courts (Amalgamation) Order, 1948 and in supersession of the Court's notification no.8427/Ib-39-49, dated July 15, 1949, the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that with effect from July 10, 1954, the Lucknow Bench of the High Court of Judicature at Allahabad shall exercise jurisdiction and power in respect of cases under the following Acts arising within its existing territorial jurisdiction : (1) The Indian Divorce Act, 1869 (Act IV of 1869). (2) The Special Marriage Act, 1872 (Act III of 1872). (3) The Indian Succession Act, 1925 (Act XXXIX of 1925). (4) The Indian Matrimonial Causes (War Marriages) Act, 1948 (Act XL of 1948). Jurisdiction and power in respect of cases under the Indian Companies Act, 1913 (Act VII of 1913) and the Indian Income tax Act, 1922 (Act XI of 1922) shall be exercised by the Allahabad Bench of the Court. Provided that nothing herein contained shall affect the jurisdiction and power of the High Court at Allahabad in respect ....
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....t to these class of cases. 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 upto the stage of winding up arising within the area of erstwhile Oudh. NOW THEREFORE, in exercise of the powers conferred by Clause 14 of the U. P. High Court (Amalgamation) Order, 1948 and in supersession of the notifications No.8427/Ib-39-49 dated July 15, 1949 and No.6984/Ib-39 dated July 2, 1954, the Hon'ble the Chief Justice of the High Court of Judicature at Allahabad is pleased to direct that with effect from 1st October, 1975, the Lucknow Bench of the High Court of Judicature at Allahabad shall 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 : 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 windi....
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....onnected 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." 132. Immediately thereafter it was brought to the notice of Chief Justice that Notification dated 05.08.1975 conferred jurisdiction upon Judges sitting at Lucknow in the matter of Act, 1956, particularly winding up petition upto the proceedings under Section 439 of said Act. Consequently, another order was passed by Chief Justice on 14.01.2003 to the following effect : "Since the order dated 5th August 1975 passed by the Hon'ble Chief Justice in exercise of powers conferred by clause 14 of the U. P. High Court (Amalgamation) Order, 1948, in supersession of the notification dated 15th July, 1949, had not been brought to my notice it will be appropriate that the order dated 4.1.2003 is suitable modified. Accordingly it is ....
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....06 whereby learned Company Judge sitting at Allahabad had directed for winding up of Company and by order dated 17.10.2006, recall application of winding up order was rejected. Both these orders were held, in intra Court appeal heard by a Division Bench in M/s Sumac International Ltd. (supra), as without jurisdiction. In para 3 of judgment, referring to Supreme Court's judgment in Sri Nasiruddin (supra), Court said that Lucknow Bench has exclusive jurisdiction with regard to cases which arise in respect of places, which were part of erstwhile Avadh/Oudh. Division Bench categorically said that despite earlier Division Bench judgment in Sumac International Ltd (supra) i.e. AIR 1997 Allahabad 424, Court cannot take an otherwise stand when it is clear that Allahabad Seat does not have jurisdiction in the matter. It held that on the point of jurisdiction, there cannot be any res judicata. It also held that an order without jurisdiction is valid only for parties, who choose to treat it as valid, but otherwise such order can be disregarded by parties, and therefore, even more so by Court, before which such orders come to be considered and applied at later times. Court in paras 25 and ....
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.... appellant's writ petition. He could not allow the plea without hearing the affected party and without determining on objective criteria and upon investigation whether the case was (a) transferable, and (b) should be transferred. His decision would affect the right of the appellant to choose her "forum convenients". He was, therefore, acting as an adjudicating body empowered by the Constitution to discharge judicial functions. We would accordingly hold that the Chief Justice while exercising jurisdiction under para 14 of the 1948 Order, acts as a judicial authority with all the attributes of a court..." (emphasis added) 139. In para 21 of the judgment, Court also said that the power of transfer from Lucknow to Allahabad will arise where judges at Lucknow have jurisdiction, and further, power will be exercised for 'hearing' the matter at Allahabad, but if the matter has already been 'heard', then Article/Clause 14 of U. P. High Courts (Amalgamation) Order, 1948 giving power to transfer a case from Lucknow to Allahabad will not be available. Relevant observations are as under : "The proviso assumes first, that the case or class of cases to be ....
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....ransferred to District Court on 12.07.1993. On 17.02.1997, District Court framed issues but no issue with regard to territorial jurisdiction was framed, since, there was no dispute between parties. It is only on 22.08.1997 i.e. after more than eight years of filing of written statement, Builder filed an application under Order 6 Rule 17 C.P.C. seeking amendment in the written statement by raising objection with regard to jurisdiction of Delhi Court and claimed that since property in dispute situate in Gudgaon District, State of Haryana, therefore, vide Section 16 C.P.C., suit for recovery of property could be instituted within local jurisdiction where disputed property situated and Delhi Court had no jurisdiction. Amendment was allowed and Trial Court framed an issue on the question of territorial jurisdiction. The issue of jurisdiction was decided as a 'preliminary issue' in favour of Builder. It was challenged in High Court, but failed thereat. Buyer thereafter brought matter in appeal before Supreme Court. Court considered scheme of Sections 15 to 20 C.P.C. and observed that Section 16 C.P.C. recognizes well established principle that actions against 'res' or ....
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....nd in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage." 144. Thereafter Court said that so far as jurisdiction of subject-matter is concerned, it is totally distinct and stand on different footing. Where a Court has no jurisdiction over subject-matter of suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by Court having no jurisdiction qua subject matter, is a nullity. In para 32 of judgment, relying on its earlier judgment in Bahrein Petroleum Company vs. P. J. Pappu, AIR 1966 SC 634, Court held : "A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice." (emphasis added) 145. When we look at aforesaid judgment and apply it to facts of present case, on the one hand, it appears that it is a simple case of objec....