Raman Chadha vs Basti Sugar Mills Co. Ltd.

Rajiv Sahai Endlaw, J.—This appeal is preferred against the order dated 2nd February, 2012 of the learned Company Judge of this Court in

an appeal (Co. A. (SB) 74/2011) u/s 10F of the Companies Act, 1956 against the order dated 9th September, 2011 of the Company Law Board

dismissing the application of the appellant u/s 111A of the Act for rectification of the Share Register. This appeal is accompanied with an

application for condonation of 250 days delay in filing the same. The delay is sought to be explained by pleading that the appellant had filed an SLP

No. 12054/2012 challenging the said order dated 2nd February, 2012 but which SLP was on 30th July, 2012 dismissed as withdrawn and

whereafter the present appeal was filed. This appeal came up before us first on 27th November, 2012 when we had raised doubt as to the

maintainability thereof. The matter was adjourned to today on the request of the counsel for the appellant to study the matter.

The appeal is filed u/s 483 of the Act. However Section 483 provides for appeals from orders made or decision given in the matter of winding

up of a Company by the Court. The said provision thus cannot be invoked.

The counsel for the appellant has today drawn our attention to:-

(i). Prakash Timbers Pvt. Ltd. and other Vs. Smt. Sushma Shingla and another, ; and,

(ii). Maharashtra Power Development Corporation Ltd. Vs. Dabhol Power Co. and Others, .

What we however find is that the Allahabad High Court had held such intra court appeal to be maintainable under Rule 5 of Chapter VIII of the

Allahabad High Court Rules which, needless to state, do not apply to this Court. The Bombay High Court of course held an appeal to the Division

Bench maintainable against the order of the Company Judge in an appeal u/s 10F of the Act.

We have however drawn the attention of the counsel for the appellant to Kamal Kumar Dutta and Another Vs. Ruby General Hospital Ltd. and

Others, where the judgment supra of the Bombay High Court was held to be not laying down a correct proposition of law and it was held that no

further appeal (from an order in an appeal u/s 10F of the Act) had been provided under the Act and Parliament while amending Section 100A of

the CPC w.e.f. 1st July, 2002 took away the letters patent power of High Court in the matter of appeal against order of a Single Judge to a

Division Bench.

The counsel for the respondent appearing on advance notice has also invited our attention to the judgment dated 20th October, 2008 of the Full

Bench of this Court in LPA No. 198/2008 titled Avtar Narain Behal Vs. Subhash Chander Behal, also laying down that after the insertion of

Section 100A in CPC, no Letters Patent Appeal is maintainable against the judgment rendered by a Single Judge in a first appeal arising out of a

special enactment.

This appeal is thus clearly not maintainable.

Before parting with the case, we may record the contention of the counsel for the respondent that the SLP preferred by the appellant was

argued at length and was withdrawn only when the appellant failed to make out a challenge on merits to the order dated 2nd February, 2012 of the

learned Company Judge. Of course the counsel for the appellant controverts and has relied on Ahmedabad Manufacturing and Calico Printing Co.

Ltd. Vs. Workmen and Another, and Sahi Ram Vs. Avtar Singh AIR 1999 Delhi 96 (DB) to contend that dismissal in limine without speaking

order or withdrawal of an SLP does not come in the way of an appeal being filed. However since we find the appeal in any case to be not

maintainable, need is not felt to deal with the said aspect. The appeal is accordingly dismissed as not maintainable.

No costs.