WESTERN INDIA THEATRES LTD Vs. ISHWARBHAI SOMABHAI PATEL

JUDGEMENT

(1.) THIS litigation has had a checkered history and has gone through many vicissitudes and we were hoping that its history would come to an end and it would have no more vicissitudes. Unfortunately, the litigation is destined for still more checkered history and to go through some more vicissitudes.

(2.) THIS is an appeal from an order passed by Mr. Justice Shelat under Rule 751 of the High Court Rules, directing that the petition should be advertised. The petition for winding up the appellant! company was filed on the 9th November 1955 and my brother S. T. Desai ordered on the 3rd July 1956 that it should be advertised. There was an appeal against his decision and on the 20th July 1956 the appellate Court set aside that order and remanded the matter to the learned Judge. On the 16th August 1956 the matter came before the learned Judge when the petitioners applied to withdraw from the petition. Applications were made before him for substitution and those applications were dismissed and ultimately the petition was dismissed. There was an appeal against that decision and on the 1st March 1957 the appellate Court set aside the order of dismissal, substituted one Mulraj Dwarkadas in place of the original petitioners, and remanded the matter to the Company Judge. The matter came before the learned Company Judge on the 12th March 1957. On that day Mulraj withdrew from the petition and the learned Judge made the order substituting in his place the present respondent Ishwarbhai Somabhai Patel.

(3.) THE first contention that has been raised before us by Mr. Desai on behalf of the respondent is that this is not an appealable order. We had occasion to consider this matter at some length in Bachharaj Factories Ltd. v. Hirjee Mills Ltd. , 57 Bom LR 378: ( (S) AIR 1955 Bom 355 ). In that case Mr. Justice Coyajee', on a petition to wind up a company, refused to make the order and adjourned it to a future date. An appeal was preferred against this decision and the question that arose was whether the appeal lay under section 202 of the Companies Act, and in the judgment we pointed out that section 202 conferred an important and valuable safeguard in respect of orders made in the winding up of a company, and the scheme of the Companies Act was that whereas with regard to other matters specific appeals were provided under section 202, every order and decision in winding up was made subject to appeal. We made it clear that from that it did not follow that a purely procedural order made by a Judge in a winding up would be subject to appeal, but we took the view that the order passed by Mr. Justice Coyajee adjourning the petition was not an order intended to regulate the procedure either for the convenience of the Court or lor the convenience of the parties. The petitioner was entitled to an order for winding up and Mr. Justice Coyajee in refusing to make the order and adjourning the petition was depriving the petitioner of a right to which he was entitled if his petition was well rounded, and therefore the grievance that he had was that the learned judge had refused to make the order of winding up and had adjourned the petition. Now, if we apply that test to the facts of the present case, it would be found that if the view we took in that case was correct, then it must inevitably follow that the present order passed by Mr. Justice Shelat is also appealable.