Union Of India vs Asia Udyog (Pvt.) Ltd. & Ors.
1991 Latest Caselaw 302 Del

ORDER

M. C. JAIN, C.J. :

This company appeal arises out of the order of the learned Single Judge dt. 19th December, 1973, whereby the learned Judge dismissed the appellants appeal upholding the order of the learned District Judge acting as Company at the relevant time.

2. A petition under s. 153A(1)(f) of the Indian Companies Act, 1913, read with s. 647 of the Companies Act, 1956, was presented before the District Judge, Delhi, for realisation of arrears of income-tax and business profits tax which had become due from M/s. Dalmia Jain Airways Ltd., respondent No. 2, for the asst. yrs. 1948-49 to 1953-54 M/s. Dalmia Jain Airways Ltd. was amalgamated by the order dt. 10th February, 1953, and by a subsequent order dt. 13th February, 1953, the District Judge had directed that the whole property of the transferor company, i.e., M/s. Dalmia Jain Airways Ltd. shall stand transferred and vest in the transferee company, namely, M/s. Asia Udyog Pvt. Ltd. It was also directed that all the liabilities of the transferor company, by virtue of the order, become the liability of the transferee company. The learned District Judge, on the appellants petition, framed issues. The first issue was as to whether that Court had jurisdiction to entertain the petition and the learned District Judge found that the petition was not maintainable and so it had no jurisdiction to entertain the same. This finding of the learned District Judge was upheld by the learned Single Judge of this Court. While dealing with issue No. 1, the learned Single Judge considered the provisions contained in ss. 153 and 153-A of the Companies Act, and also the provisions of ss. 391 and 394 of the Companies Act, 1956 which provisions are pari materia with the provisions of the Act of 1913. To our mind, the petition itself is misconceived under s. 153-A(1)(f) of the Act of 1913 read with s. 647 of the Companies Act, 1956. Sec. 153-A(1)(f) provided that the Court may either, by order, sanction the compromise of arrangement or by any subsequent order make provision for such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation may be fully and effectively carried out. The learned Single Judge after analysing the provisions found that second part of cl. (f) would not be attracted to the appellants petition. The appellants sought a direction for realisation of payment of its tax dues. Such a prayer could not be considered under cl. (f). It must be to secure that the reconstruction and amalgamation may be fully and effectively carried out. Even, without making any provision for payment of tax dues, reconstruction, amalgamation can otherwise be fully and effectively carried out. That apart, the amalgamation was complete as early as 1953 and the petition was submitted in May, 1965. After the lapse of more than 12 years, no revision of the order of amalgamation could take place. Independent of the provisions of the Companies Act under which the petition was presented, the tax authorities may exercise their powers for realisation of their dues but so far as the present petition is concerned, in our opinion, the same was not maintainable and we agree with the view taken by the learned Single Judge in this regard.

3. In the result, we find no force in this appeal and the same is hereby dismissed.