IN RE: LAKHMIDAS KHIMJI SPINNING AND WEAVING COMPANY LTD (IN LIQUIDATION); GOVERDHANDAS KHATTAO Vs. JSANDERS SLATER

JUDGEMENT

(1.) We see no reason to differ from the conclusion at which we arrived yesterday that the sending of a Memorandum of appeal to the respondent was not such a notice as is contemplated in Section 169 of the Companies Act, because it is not a notice given in the manner in which notices, of appeal are ordinarily given under the Code of Civil Procedure. The only provision of the Code of Civil Procedure which we have been referred to regarding notices of appeal is that contained in Order XLI, Rule 14, which provides that notice of the day fixed for the hearing of the appeal shall be given in a certain manner. It is to be affixed in the Court-house and a like notice is to be served on the respondent or his pleader in the manner provided for the service on a defendant of a summons to appear and answer, and all the provisions applicable to such summons are to apply to such notice.

(2.) Then, it was argued that the words of Section 169 do not pro- vide for service of notice upon the respondent; but that is answered by reference to Order XLI, Rule 14, which provides I that a notice must be served upon the respondent or his pleader.

(3.) Then, it was said that Section 169 is an enabling section and does not restrict the right of appeal given by Clause 15 of the Letters Patent to the High Court. Clause 15 of the Letters Patent provides that an appeal shall lie from the judgment of one Judge of the High Court. Section 169 in no way derogates from that provision but it directs that in the case of appeals from orders made or given in the matter of winding up of a Company by the Court, the appeal shall not be heard unless notice is given in a certain manner.