SATISH CHURAN LAW Vs. R GOHO OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) The appellant was a director of the Ballygunge Real Property and Building Society Limited, now in liquidation. On the 18th January 1960 the Official Liquidator applied to the Company Judge for an order under Section 477 of the Indian Companies Act. The application was made ex parte by summons in form No. 109 of the Companies (Court) Rules 1959. The summons was accompanied by a statement signed by the Official Liquidator setting forth the materials on which the application was based. On reading that statement the learned Company Judge made an order directing the issue of a summons requiring the appellant to attend for being examined touching the affairs of the company and further directing him to produce certain books and documents specified in the order. The appellant was served with the summons directed Jo be issued under this order. Subsequently the appellant applied to the Company Judge for an order that the order dated the 18th January 1960, be set aside or modified and also for an order that the appellant be given leave to inspect the records of Court including the statement of the Official Liquidator upon which, the order dated the 18th January 1960, was based. By an order dated the 15th July 1960 the learned Company Judge Law, J. dismissed the application. He held that as the order dated the 18th January 1960 had been drawn up and filed the Court had no power to set aside or modify it. He also held that the appellant is not entitled to the inspection prayed for. The appellant has preferred this appeal from this order.

(2.) At the outset the respondent contends that no appeal lies from the order dated the 15th July 1960. Now an order or a decision in the winding up of a company in order to be appealable under Section 483 of the Companies Act, 1956 must amount to a judgment within the meaning of Clause 15 of the Letters Patent. On behalf of the respondent it was contended that having regard to the decision in Madan Gopal v. Sachindra Nath, ILR 55 Cal. 262: (AIR 1928 Cal 295), the order dated the 18th January 1960 was not appealable and that a fortiori the subsequent order refusing to discharge or modify the main order is also not appealable. It may be that no appeal lies from the order if the only ground of appeal is that the order is wrong on the merits. But in my opinion an appeal lies from the order where, as in this case, the ground of appeal is that the learned Judge has refused to exercise a jurisdiction vested in him by law and has wrongly held that he has no jurisdiction to discharge or modify the previous order. An appeal lies under Clause 15 of the Letters Patent from an Older which may not be otherwise appealable where the ground of appeal is that the Court has wrongly assumed a jurisdiction which is not vested in it by law, see National Textiles v. Premraj Ganpatrai; equally an appeal lies under Clause 15 from an order which may not be otherwise appealable where the ground of appeal is that the Court has wrongly refused to exercise a jurisdiction vested in it by law. The order being appealable, the appellate court need not confine itself to a declaration that the learned Judge has jurisdiction to make the order; on finding that the learned Judge had jurisdiction to make the order, the appellate court may pass any order which in its opinion ought to have been passed by him.

(3.) The order appealed from so far as it decides that the appellant is not entitled to inspection of the statement of the Official Liquidator is also appealable. The order decides that the appellant has no right to inspect the document and such a decision amounts to a judgment within the meaning of Clause 15 of the Letters Patent. The summons taken out on behalf of the appellant asks for inspection of documents in somewhat general terms. In this Court counsel for the appellant has confined his claim for inspection to the statement of the Official Liquidator and the annexure thereto.