P.K. Dalmia vs Official Liquidator, Uttar Pradesh Cement Corpn. Ltd.

Heard Shri P.K. Dalmia, appearing in Person and Shri Ashok Mehta learned Counsel appearing for the Official Liquidator.

This Special (Company) Appeal filed under Chapter VIII Rule v. of the Rules of the Court, has been filed against the judgment and orders dated 07/3/2007, 11/10/2007, 24/10/2007 and 03/1/2008 passed by the learned Company Judge as stated in the memo of appeal: Appellant appearing in person had filed an application that the appeal be confined only against the order dated 11/10/2007. By an order dated 22/11/2010, the application of the Appellant has been allowed and this appeal has been confined to order dated 11/10/2007 of the Company Judge deciding the application of the Appellant filed under Rule 164 of Company Rules, 1959 (hereinafter called the "Rules, 1959").

Brief facts of the case giving rise to this Appeal are: The Board of Directors of U.P. Cement Corporation Ltd. made a reference to the Board for Industrial and Financial Reconstruction. An opinion was given that the Sick Company was not likely to make its net worth exceed the accumulated losses. Appeals were filed before the Appellate Authority which were dismissed. This Court in Company Application No. 4/1997, passed an order on 08/12/1999 directing the U.P. State Cement Corporation Ltd. to be wound up. The Official Liquidator was directed to take possession of the assets of the Corporation and to take appropriate action in accordance with law. The Appellant, an unsecured creditor filed affidavit of proof of debt/claim as partner of Bhoj Raj Dalmia & Sons, claiming a sum of Rs. 1,72,15,360.33 for services rendered for arranging coal supplies and arranging supplies of Granulated Iron Slag delivered to the Company between 1956 to 1987. The Official Liquidator allowed only part of the claim of Rs. 3,88,464/-. The Official Liquidator held that the interest amount was not payable. The Appellant was communicated by letter dated 08/12/2006, with regard to adjudication of claim of the Appellant. The Appellant, filed objection/appeal under Rule 164 of the Rule 1959 being Civil Misc. Application No. 243611 of 2007 dated 08/10/2007. Learned Company Judge exercising the jurisdiction under Rule 164 of the Rules, 1959 passed an order dated 11/10/2007 rejecting the Application No. 243611 of 2007 filed by the Appellant. Certain other applications were decided by the same order. The Appellant aggrieved against the order dated 11/10/2007, passed by the learned Company Judge rejecting his application has filed this Special (Company) Appeal under Chapter VIII Rule v. of the Rules of the Court.

Shri Ashok Mehta, learned Counsel appearing for the Official Liquidator submits that this Special (Company) Appeal which has been filed under Chapter VIII Rule v. of the Rules of the Court, is not maintainable since the order of the Company Judge impugned in the appeal is an appellate order under Rule 164 of the Rules, 1959. He further submits that the Company Appeal u/s 483 of the Companies Act, 1956 (hereinafter called the "Act, 1956") is also not maintainable.

Shri Ashok Mehta learned Counsel appearing for the Official Liquidator submits that another unsecured creditor with regard to the U.P. State Cement Corporation had also filed objection under Rule 164, which was decided by the learned Company Judge, against which the Special Appeal No. 1748/2009, U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd v. Official Liquidator and Anr., was filed in which the similar objection was upheld by the Division Bench vide judgment and order dated 18/12/2009.( Reported in 2010 (1) ADJ 636.

Shri P.K. Dalmia, appearing in person submits that the appeal is maintainable. He has relied on the judgment of the Apex Court reported in Vijay Kumar Karwa v. Official Liquidator, Rohtas Inds. Ltd JT2008 325. He submits that the order of the learned Single Judge is based on incorrect facts and in fact is an infructuous order. He submits that the appeal is clearly maintainable and this Court should decide the matter on merits. Shri P.K. Dalmia, appearing in person further made a request that the matter be remanded to the learned Company Judge to re-examine the matter on merits.

We have considered the submissions of Shri P.K. Dalmia, appearing in person as well as of Shri Ashok Mehta learned Counsel appearing for the Official Liquidator.

The first issue which is to be considered is as to whether this Special (Company) Appeal No. 1911 of 2008, filed under Chapter VIII Rule v. of the Rules of the Court, is maintainable and the order of the learned Company Judge needs to be examined on merits. The order dated 11/10/2007, which is impugned in this appeal has been passed by the learned Company Judge in exercise of jurisdiction under Rule 164. Rule 164 of the Company Rules is as follows:

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.

Rule 164, of the Company Rules contemplates for an appeal by a creditor who is dissatisfied with the decision of the Official Liquidator in respect of his proof. In the present case, the Claims Committee examined the matter and the report was accepted by the Official Liquidator and the Official Liquidator by notice dated 08/12/2006, informed the Appellant that his claim of Rs. 3,88,464/-is allowed and interest amount is not payable. Aggrieved by the said order, petition under Rule 164, was filed by the Appellant. The Appellant in his ground of appeal has clearly claimed that he had filed petition under Rule 164. It is useful to reproduce the ground No. 22 of the grounds of appeal which is to the following effect

Because the applicant filed a petition Under Rule 164 of the Companies (Court) Rule Annexing all relevant documents for claim being treated at par with workers and as well as that there is no order of rejection of claims by Arbitrators since the Official Liquidator had recommended payment to Secured Creditors much in excess of amount actually payable, the claim of applicant was affected and requested the Hon''ble Court to get amount recommended for payment to Banks rechecked by a competent authority like Comptroller Gen: of Account at Allahabad before any disbursement is made.

Thus, the order which is impugned in the present appeal is an order in exercise of appellate jurisdiction. The judgment which has been relied by Shri Ashok Mehta, learned Counsel appearing for the Official Liquidator in U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd (supra) was a case where the Appellant was also an unsecured creditor who had filed objection under Rule 164, arising out of the same winding up proceedings by U.P. Cement Corporation. The claimant, U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd has submitted an objection under Rule 164, which was rejected and which order was challenged before the Division Bench. The Division Bench considered the maintainability of the appeal both under Chapter VIII Rule 5 of the Rules of the Court and u/s 483 of the Company Act, 1956. The Special (Company) Appeal filed under Chapter VIII Rule v. of the Rules of the Court, is clearly barred under Chapter VIII Rule v. of the Rules of the Court, against an order of learned Single Judge exercising the appellate jurisdiction. In the case of U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd (supra) reliance was placed on Section 483 of the Act, 1956 for maintainability of the appeal. Relying on the judgment of the Apex Court in Kamal Kumar Dutta and Anr. (supra), the Division Bench, of which one of us (Ashok Bhushan,J) was member took the view that appeal u/s 483 of the Act, 1956, was not maintainable. The Division Bench also considered the effect of 100-A Code of CPC as amended by 2002 Amendment Act. As observed above, the U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd. had also filed an application under Rule 164 of the Rules 1959, arising out of the same Company Application No. 4 of 1997 which gave rise to the instant proceedings also. The learned Company Judge decided the objection/appeal of the U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd, vide its judgment and order dated 27/4/2007. An application for correction of the said order was filed which too was rejected vide order dated 26/5/2009. Against the said order the Special Appeal No. 1748/2009 was filed by U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd, in which Special Appeal preliminary objection was taken by the Official Liquidator regarding the maintainability of the appeal which objection was upheld by the Division Bench vide judgment and order dated 18/12/2009, in which one of us (Ashok Bhushan,J) was also a member. The Division Bench in U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd (supra) while upholding the objection gave following reasons in paragraphs 14, 15, 16, 17, 18, 19 and 20 which are quoted below:

The Apex Court recently had an occasion to consider the provisions of Section 100A Code of CPC A Constitution Bench of the ApexCourt had occasion to consider Section 104(1) and (2) and Section 100A Code of CPC as amended in P.S. Sathappan (Dead) by Lrs. Vs. Andhra Bank Ltd. and Others, The question for consideration was as to whether Section 100A also excluded Letters Patent Appeal which was expressly saved u/s 100(4) Code of CPC Following was laid down in paragraphs 30 and 67 of the judgment which are quoted below:

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 u/s 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, Code of CPC 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 CPC provides as follows:

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 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 Code of CPC 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.

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 100A 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.

The Apex Court in the above judgment clearly laid down that Section 100A 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:

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.

A perusal of Section 100A indicates that Section begins with non-obstante 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 u/s 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 u/s 100A CPC Code. The Apex Court has recently occasion to consider both Section 483 of the Companies Act as well as Section 100A Code of CPC in Kamal Kumar Dutta and Another Vs. Ruby General Hospital Ltd. and Others,

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 u/s 10F 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 u/s 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:

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 u/s 10F of the Act, that is an appeal from the original order. Then in that case no further Letters Patent Appeal shall lie to the Division Bench of the same High Court. This amendment has taken away the power of the Letters Patent in the matter where learned single Judge hears an appeal from the original order. Original order in the present case was passed by the CLB exercising the power under Sections 397 and 398 of the Act and appeal has been preferred u/s 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.

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:

In this connection, our attention was invited to a decision of the Bombay High Court in Maharashtra Power Development Corpn. Ltd. v. Dabhol Power Co. In that case, the High Court took the view that despite the amendment in Section 100A 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 CPC 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 100A of the Code of CPC 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.

In view of the foregoing discussion, it is clear that even if u/s 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 u/s 100A Code of CPC The judgment of the Apex Court in Kamal Kumar Dutta (supra) applies with full force in the facts of the present case.

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:

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.

The judgment which has been relied by Shri P.K. Dalmia appearing in Person in the case of Kamal Kumar Dutta and Anr. (supra), was a case where the Company Appeal was filed not against any appellate order. The relevant facts of the said case were noted in paragraph 3 of the judgment, which is quoted below:

Background facts in a nutshell are as follows:Company case No. 3 of 1984 was filed before the Patna High Court in respect of Rohtas Industries Ltd. (hereinafter referred to as the ''company'') which purportedly had become sick. It is the case of the Appellant that though efforts were made to revive, it could not materialized. Eventually the High Court started the process of disposal of the assets of the company. Appellant claiming to be representative of Bangar Group of Industries, Calcutta, filed an application in the said case. After giving particulars of the group which had annual turnover of about Rs. 5,000 crores, it was mentioned in the application that the Appellant was interested in the revival of the company. It was also mentioned that the Appellant had so decided because of the change of political conditions of the State and there was scope for industrial growth. The Appellant offered to pay Rs. 65.51 crores as consideration money for purchase of assets of the company in liquidation and proposed to invest Rs. 650 crores for revival of the industry. Steps were taken at various stages by the Government and the functionaries of the government on the application of Appellant. Official Liquidator was asked to file reply to the prayers made in the application by the Appellant. Official Liquidator filed his response on 19.6.2006. On 25.8.2006 the matter was heard by the High Court which directed for issuance of sale notice for assets of the company. IA filed by the Appellant was disposed of. The Appellant''s grievance is that the same was disposed of without giving any reason or even without considering the desirability of the revival. Reference was made to the response of the Official Liquidator who had stated further information may be called for from the Appellant. Aggrieved by the said order, the Appellant filed an appeal u/s 483 of the Act before the Division Bench on 11.1.2007. The Company Judge proceeded with the matter and directed sale of the assets of the company in favour of the Indian Railways who had made offer of Rs. 140 crores. On 12.3.2007, IA was filed by the Appellant giving details of his proposal. By the impugned order the Division Bench dismissed the appeal. Though various grounds have been urged in support of the appeal, the primary ground of challenge is that such summary disposal is indefensible particularly when the appeal is a statutory appeal.

The Apex Court in paragraphs 6 and 7 of the said judgment laid down following:

In Shanta Genevienve Pommerat and Another Vs. Sakal Papers Private Limited and Others, it was observed by this Court that the High Court is bound to entertain the appeal against the order of the learned Single Judge who disposed of it on merit and not summarily or in limine. The position was reiterated in Arati Dutta Vs. Eastern Tea Estate (P) Ltd.,

It may be noted that every order which may reasonably be considered to be a judicial order as distinct from merely administrative order is appealable in terms of Section 483 of the Act.

Shri P.K. Dalmia appearing in person submitted that against a judicial order passed by a Company Judge, appeal is always maintainable u/s 483 of the Act, 1956. There cannot be any dispute to the proposition that Section 483 of the Act, 1956 provides for Company Appeal. However, maintainability of Company Appeal u/s 483 of the Act, 1956 was subject matter of consideration in U.P. Cement Vetanbhogi Sahkari Rin Samiti Ltd (supra). The Division Bench held that against an order passed by the learned Single Judge exercising appellate jurisdiction appeal does not lie u/s 483. The judgment of the Apex Court in Vijay Kumar Karwa (supra) is not applicable in the facts of the present case. The Apex Court in the said case was not considering the question of maintainability of appeal against an order passed by the Company Judge in exercise of appellate jurisdiction as in the present case under Rule 164 of the Rules, 1959.

The submission of Shri P.K. Dalmia appearing in person that the judgment and order of the learned Company Judge is based on non-existing fact and is infructuous, cannot be gone into in this appeal since we are of the view that the appeal itself is not maintainable. Prayer of the Appellant that the matter be remanded back to the Company Judge for considering the matter again also cannot be entertained in view of the fact that we are taking the view that this special appeal is not maintainable. The Appellant, who is appearing in person has submitted that unless the appeal is not heard on merits, the Appellant shall be rendered remedy less against the impunged order passed by the learned Company Judge. Against the order of the the learned Company Judge the Appellant is not remedy less. The Appellant can very well file an Special Leave to Appeal before the Apex Court. The jurisdiction under Article 136 of the Constitution of the India is to be invoked by an aggrieved person within the time allowed by the Supreme Court Rules i.e. within 90 days. Thus, the submission of the Appellant that if the appeal is held to be not maintainable the Appellant will be remedy less cannot be accepted.

In view of the foregoing discussion, the preliminary objection raised by Shri Ashok Mehta learned Counsel appearing for the Official Liquidator, is to be accepted that this appeal is not maintainable. We again make it clear that we have not entered into the merits of the case in this appeal and the Appellant may seek his appropriate remedy in accordance with law.

With the above observation, the special appeal is dismissed as not maintainable.