UNION OF INDIA Vs. ASIA UDYOG PRIVATE LIMITED

JUDGEMENT

(1.) This Company appeal arises out of the order of the leamrd Single Judge dated 19th December, 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 153-A(1)(f) of the Indian Companies Act, 1913 read with Section 647 of the Companies Act, 1955 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 assessment years 1948-49 to 1953-54. M/s 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. 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, 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 153-A of the Companies Act, 1913 and also the provisions of Sections 391 and 394 of the Companies Act, 1956 which provisions are peri materia with the provisions of the Act of 1913. To our mind, the petition itself is misconceived under Section 153-A(1)(f) of the Act of 1913 read with Section 647- of the Companies Act, 1956. Section 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 arid effectively carried out. The learned Single Judge after analysing the provisions found that second part of the clause (f) would not be attracted to the appellants' petition. The appellants shought 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, 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.