SUMAC INTERNATIONAL LIMITED Vs. PNB CAPITAL SERVICES LIMITED

JUDGEMENT

(1.) Aggrieved by the order dated 6-12-1996, passed by learned single Judge, in Company Petition No, 16 of 1996, the respondent therein has filed this appeal. By the impugned order objection of the appellant questioning the maintainability of the Company petition in this Court at Allahabad has been overruled.

(2.) The facts, in short, giving rise to this appeal are that respondent Punjab National Bank filed a petition on 2-7-1996 for winding up of appellant Company under Sections 433, 434 and 439 of the Companies Act, 1956. The winding up of the Company has been sought on the ground that it is unable to pay its debts and, therefore, it should be wound up by order of this Court. On 3-7-1996 this Court issued notice to the appellant Company to show cause why the petition may not be admitted and advertised- In response to this notice, the appellant Company appeared and filed objection questioning the maintainability of the Company Petition and prayed for dismissal of the same. After exchange of affidavit, the objection raised by the appellant was rejected on 6-12l996. Against the aforesaid order the present appeal was filed by the appellant on 28-3-1997.

(3.) We have heard Shri Janardan Sahai for appellant and Shri K. L. Grover for respondent. Learned counsel for appellant has submitted that the Notification dated 15-7-1949 excluding jurisdiction of Lucknow bench in respect of Company cases was issued by the Chief Justice in exercise of his power under the Second Proviso to para. 14 of the United Provinces High Courts (Amalgamation) Order, 1948 (hereinafter referred to as the Amalgamation Order). The Notification is not under the First Proviso which deals with the territorial jurisdiction of the Lucknow bench in respect of districts falling in Oudh Area. It has been submitted that the Second Proviso confers power on the Chief Justice to order that any case or class of cases arising in the said areas, shall be heard at Allahabad. The word "heard" has been interpreted by the Apex Court in case of Nasiruddin v. State Transport Appellate Tribunal reported in AIR 1976 SC 331 and it has been held that the expression "heard" would not include institution of cases. Thus, under the Second Proviso, the Chief Justice could issue an order for the case or class of cases arising out of Oudh Area to be heard at Allahabad which were already instituted at Lucknow. It has been further submitted that the effect of the judgment of the Supreme Court in Nasiruddin's case is that the power under the Second Proviso can be exercised only with reference to cases already instituted at Lucknow and pending there and not in respect of cases to be instituted in future. If the order of the Chief Justice published in Notification dated 157-1949 is interpreted to mean that institution of case or class of cases at Lucknow bench is excluded and the institution should also be at Allahabad, the notification would be beyond the powers conferred on the Chief Justice under the Second Proviso to para, 14 of the Amalgamation Order and consequently it shall be invalid. It has also been submitted that as Notification dated 15-7-1949 modifies partially. the Notification dated 26-7-1948 by which the jurisdiction of Lucknow Bench has been defined in respect of the cases arising out of the Oudh Areas, the Notification is illegal and bad for want of authority in view of the Full Bench judgment of this Court in case of Ram Lakhan Saran v. Sunni Central Board of Waqfs, U. P., Lucknow, reported in AIR 1976 All 532 : (1976 All LJ 720). It has also been submitted that the judgment of the Division Bench of this Court dated 24-9-1982 in case of Jukul Kishore v. Official Liquidator in Special Appeals Nos. 7 and 8 of the 1979 is distinguishable as in that case winding up order had already been passed at Allahabad. The Bench in that case observed that the proceedings under Sections 446, 448, 542 and 543 of the Companies Act were in course of winding up and for these proceedings cause of action arose at Allahabad where the winding up order was passed. It is submitted that the aforesaid judgment of the Division Bench is not applicable to the facts of the present case. It is also submitted that the view taken by the Division Bench cannot be termed to be a good law as the Bench could not consider the observations of the Supreme Court in Nasiruddin's in para 37 in which the expression "heard" has been considered and interpreted and distinguished from the expression "institution". It has been further submitted that under Section 10 of the Companies Act also the Company petition for winding up of the appellant company could be filed at Lucknow and not at Allahabad. The jurisdiction at Allahabad could not be created for filing of company petition on the ground that the official liquidator has his office at Allahabad. The official liquidator is appointed for the High Court and not in respect of any Bench of High Court. It has also been submitted that the question of jurisdiction can be raised at any stage. In the present case objection was raised at the earliest opportunity even before tiling of the counteraffidavit. 'In the counter-affidavit filed on Company Petition also the question of jurisdiction was raised in para 22. Even after exchange of counter and rejoinder affidavit, the winding up proceedings are at initial stage. It has also been submitted that the cases reported in: Pathumma v. Kuntalan Kutti, AIR 1981 SC 1683 and Manager, Hardware and Tools Ltd. v. Saru Smalting (P.) Ltd., AIR 1983 All 329 are based on Section 21, C.P.C. and cannot be helpful in the present case where appeal has been filed against the order deciding the question of jurisdiction. Learned counsel has also placed reliance in case of U. P. Rashtriya Chini Mill Adhikari Parishad v. State of U. P., reported in AIR 1995 SC 2148 : 1995 AIR SCW 3318.