Union Of India vs Asia Udyog (Pvt.) Ltd. And Others
1991 Latest Caselaw 303 Del

JUDGMENT

M.C. Jain, C.J.

1. This company appeal arises out of the order of the learned single judge dated December 19, 1973, whereby the learned judge dismissed the appellant's appeal upholding the order of the learned District Judge acting as company judge at the relevant time.

2. A petition under section 153A(1)(f) of the Indian Companies Act, 1913, read with section 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 Dalmia Jain Airways Ltd., respondent No. 2, for the assessment years 1948.49 to 1953-54. Dalmia Jain Airways Ltd. was amalgamated by the order dated February 10, 1953, and by a subsequent order dated February 13, 1953, the District Judge had directed that the whole property of the transferor-company, i.e., Dalmia Jain Airways Ltd. shall stand transferred to and vest in the transferee-company, namely, Asia Udyog Pvt. Ltd. It was also directed that all the liabilities of the transferor-company, by virtue of the order; becomes the liability of the transferee-company. The learned District Judge; on the appellant's 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 sections 153 and 153A of the Companies Act, 1913, and also the provisions of section 391 and 394 of the Companies Act, 1956, which provisions are in pari materia with the provisions of the Act of 1913. To our mind, the petition itself is misconceived under section 153A(1)(f) of the Act of 1913 read with section 647 of the Companies Act, 1956. Section 153A(1)(f) provided that the court may either, by order, sanction the compromise or 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 the second part of clause (f) would not be attracted to the appellant's petition. The appellants sought a direction for realisation of payment of its tax dues. Such a prayer could not be considered under clause (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 or amalgamation can other wise 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. Independently 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 tar 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.