OFFICIAL LIQUIDATOR Vs. MADURA CO P LTD

JUDGEMENT

(1.) This appeal, purported to be under S.483 of the Companies Act, 1956, hereinafter referred to as the Act, raises an important question of law relating to the scope and applicability of the second proviso to sub-s.(1) of S.394 of the Act.

(2.) The Official Liquidator, High Court of Kerala, Ernakulam, is the appellant; respondents are: (1) Madura Company Private Ltd., and (2) Binny Limited, who were the petitioners before the Company Court. The petition before the Company Court was one for sanctioning a scheme for amalgamation of the transferor company (Madura Company Private Ltd.) with the transferee company (Binny Limited). In the petition there was also a prayer for an order for dissolution of the transferor company, without winding up. These two reliefs have been granted by the Company Court as per the order under appeal. In the course of his argument the only ground urged by the learned Advocate General, who appeared for the appellant, to attack the Company Court's order is that it is bad for want of notice to the appellant, who, according to him, is entitled to it in any proceedings in court which results in the dissolution of the transferor company in pursuance of a scheme for amalgamation, by virtue of the provisions contained in the second proviso to sub-s.(1) of S.394 of the Act.

(3.) Sri. K. A. Nayar, counsel appearing for the respondents, has raised before us a preliminary point touching the maintainability of the appeal as, according to him, S.483 of the Act, under which the appeal is seen to have been filed, is attracted only to orders made or decisions given in the matter of winding up of companies by the Court. It is pointed out that in the present case the order under challenge is one sanctioning a scheme for amalgamation of the respondents companies and for the dissolution of the transferor company, without winding up, under S.394 of the Act. The learned Advocate General has a case that under S.5 of the Kerala High Court Act, 1958, an appeal would lie to a Bench of two Judges from an order of Single Judge in exercise of original jurisdiction. It is not, however, necessary for us to go into this controversy in view of the order passed by this Court on 9-2-1971 in C. M. P. No. 573 of 1971, granting leave to the appellant to appeal against the order under challenge.