Raman Chadha vs Basti Sugar Mills Co. Ltd.
2012 Latest Caselaw 6868 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 30th November, 2012

+                         CO.APP. 97/2012

      RAMAN CHADHA                                      ..... Appellant
                 Through:              Mr. Anurag Pratap & Dr.
                                       Manmohan Sharma, Advs.

                                 Versus

    BASTI SUGAR MILLS CO. LTD.               ..... Respondent

Through: Mr. Alok Aggarwal, Mr. Uday Kumar & Mr. Mayank, Advs.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This appeal is preferred against the order dated 2 nd February, 2012

of the learned Company Judge of this Court in an appeal (Co.A.(SB)

74/2011) under Section10F of the Companies Act, 1956 against the order

dated 9th September, 2011 of the Company Law Board dismissing the

application of the appellant under Section 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 2 nd February, 2012

but which SLP was on 30th July, 2012 dismissed as withdrawn and

whereafter the present appeal was filed.

2. This appeal came up before us first on 27 th 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.

3. The appeal is filed under Section 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.

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

(i). Prakash Timbers Pvt. Ltd. Vs. Smt. Sushma Shingla AIR

1996 Allahabad 262 (DB); and,

(ii). Maharashtra Power Development Corporation Ltd. Vs.

Dabhol Power Co. AIR 2004 Bombay 38 (DB).

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 under Section 10F of the Act.

5. We have however drawn the attention of the counsel for the

appellant to Kamal Kumar Dutta Vs. Ruby General Hospital Ltd. (2006)

7 SCC 613 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 under Section 10F of

the Act) had been provided under the Act and Parliament while amending

Section 100A of the CPC w.e.f. 1 st 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.

6. The counsel for the respondent appearing on advance notice has

also invited our attention to the judgment dated 20 th 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.

7. This appeal is thus clearly not maintainable.

8. Before parting with the case, we may record the contention of the

counsel for the respondent that the Special Leave Petition 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 2 nd

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. The Workmen AIR 1981 SC 960 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.

9. The appeal is accordingly dismissed as not maintainable.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 30, 2012 pp..