This Intra Court appeal against the impugned judgment dated 30.11.2006 has been preferred by the appellant raising the issue as to whether the learned Company Judge could proceed to hear the Company Petition No. 57 of 2001 that was instituted at Allahabad in relation to a Company, that is the Appellant No. 1, which has its registered office at 6, Mall Avenue, Lucknow, and as to whether the Hon'ble The Chief Justice could have passed an administrative order on 30th November, 2005 as endorsed on the order of reference of the learned Single Judge dated 06.10.2005, thereby consolidating and directing that including the Company Petition No. 57 of 2001 be heard alongwith all matters at Allahabad, itself.
The principal ground of challenge raised in the appeal is that the registered office of the appellant no. 1 being at Lucknow, the territorial jurisdiction for entertaining a petition for winding up on behalf of the respondent no. 1 could have been only instituted before the learned Company Judge at Lucknow as the Head Quarters and the registered office of the Company were at Lucknow, and keeping in view the definition as contained in Section 10 of the Companies Act, 1956 read with Section 2(11) thereof, the Company petition for winding up could have been instituted only at Lucknow. In sum and substance, it is urged that the territorial jurisdiction for the Institution of the Company petition up to the stage of the passing of the winding up order was entertainable in the High Court only at Lucknow and not at Allahabad. For this, reliance is placed on the United Provinces High Court's Amalgamation Order, 1948 and it is urged, that even if the petition was to be heard at Allahabad, it had to be instituted at Lucknow first and the Hon'ble The Chief Justice exercising powers under the IInd proviso to Section 14 could have transferred the petition to Allahabad through a judicial order as interpreted by the Apex Court in the case of Manju Varma Vs. State of U.P. 2005 (1) SCC 73.
The main argument to sustain the aforesaid submission is based on the Division Bench order dated 14th March, 2005 in the same Company petition which was an order of reference on this very issue. It is urged, that the learned Company Judge has proceeded to hear the Company petition in complete violation of the said order and the administrative orders of the Hon'ble The Chief Justice dated 30th November, 2005 is in teeth of the said judicial pronouncement as well as the statutory provision referred to hereinabove. It is also contended that the learned Single Judge fell into an error by referring to the order of the Apex Court dated 3rd November, 2004 which stood vacated and withdrawn on 4th May 2005, and in such circumstances the jurisdiction could not have been assumed by the learned Single Judge to deal with Company Petition No. 57 of 2001 which was statutorily and legally impermissible.
Sri Anil Tiwari learned Senior Counsel assisted by Sri Apurva Tiwari and Sri Nitin Sharma have invited the attention of the Court to the following decisions to substantiate the submission that the entire exercise conducted by the learned Single Judge is coram non judice:-
(i) Kanwar Singh Saini Vs. High Court of Delhi 2012 (4) SCC 307; para 22.
(ii) Jagmittar Singh Bhagat Vs. Director, Health Services Haryana 2013 (10) SCC 136; para 9-11.
(iii) Chief Engineer Hydel Project Vs. Ravinder Nath 2008 (2) SCC 350; para 23-28.
(iv) H.P. Gupta Vs. Hirala 1970 (1) SCC 437; para 11.
(v) H.V. Jayaram Vs. Industrial Credit & Investment Corporation of India 2000 (2) SCC 202; para 8-12.
(vi) Stridewell Leathers (P) Ltd. Vs. Bhankerpur Simbhaoli Beverages (P) Ltd 1994 (1) SCC 34; para 18.
(vii) Vimal Kumar Vs. M/s Bhilwara Wooltax Ltd 1993 SCC Online Raj 78; para 5-6.
(viii) Manju Varma Vs. State of U.P. 2005 (1) SCC 73, para 19.
Refuting the aforesaid submissions raised Sri Ashok Mehta learned Senior Counsel for the first respondent and the official liquidator assisted by Sri Manoj Kumar Singh has placed before the Court the order of the Apex Court dated 3rd November, 2004 in Criminal Appeal No. 1265-66 of 2004 (Arvind Mohan Johari & Another Vs. State of U.P. & Another) to contend that the directions given in the aforesaid order amount to directions in the exercise of powers under Article 142 of the Constitution of India to do complete justice between the parties, and consequently such directions having been not specifically recalled on 4th May, 2005, the learned Single Judge was justified in proceeding to hear the matter with the aid of the said order, as well as the administrative order dated 30th November, 2005. He further submits, that the administrative order dated 30th November, 2005 is not under challenge, and in such circumstances the appeal does not deserve to be entertained.
Sri Mehta further urged, that this was a matter relating to a large scale financial fraud and all the other companies have already been wound up with no challenge having been raised to the winding up orders. He further submits, that this appeal as a matter of fact intends to protect and forestall the exercise already taken to secure the creditors of the company and its assets from being diluted in order to recover the entire finances which are subject matter, and not only the liquidation proceedings but also all criminal cases against the Directors of the Company where the Central Bureau of Investigation has filed charge-sheets and the corruption cases are still pending adjudication. He, therefore submits that any interference might be utilized as a premium to the act of cheating investors, bank and financial institutions by unlawful means, and hence this Court should presume that the learned Single Judge was justified in exercising the jurisdiction in respect of Company Petition No. 57 of 2001 lawfully which does not suffer from any error or patent lack of jurisdiction. He submits, that it is the High Court of Judicature at Allahabad that has the jurisdiction over all Company matters, particularly from the stage of winding up onwards and no such petition would lie at Lucknow in view of the notifications issued from time to time in terms of the 1948 Amalgamation Order by Hon'ble The Chief Justice. It is, therefore submitted that in view of the provisions aforesaid and the background of the case, the allegations of error of jurisdiction does not arise at all, hence the appeal deserves to be dismissed.
The facts which are necessary for adjudicating the issues raised are that Company Petition No. 57 of 2001 was instituted at Allahabad by the Registrar of Companies in respect of the Appellant No. 1, the admitted registered office whereof as recorded is 6, Mall Avenue, Lucknow.
It appears that other Company petitions were filed at Allahabad as well, but in the Company petition giving rise to this appeal, a specific objection has been taken by the appellant with regard to the territorial jurisdiction of the High Court at Allahabad to take cognizance of the same.
It is to be noted that the Company Petition No. 57 of 2001 was neither instituted at Lucknow nor was it ever transferred to Allahabad. This fact is necessary as the learned counsel for the appellant has pointed out a perversity in the impugned order on this issue.
Before filing of the Company petitions, criminal prosecution was also lodged and First Information Report's were lodged on 6th July, 2001.
The Registrar Company's filed Company Petition No. 57 of 2001 by presenting it before the High Court of Judicature at Allahabad on 8th November, 2001. An interim order was passed on 24.11.2001 directing the provisional liquidator to take over the assets with a further injunction on the Directors and their agents in their company not to alienate any of the assets of the Company. This interim order on 29th January, 2002 was put in abeyance keeping in view the undertaking given on behalf of the company by Sri N.K. Shukla. This interim order continued from time to time as is evident from the order sheet.
The winding up orders in respect of three other companies, which the respondent no. 1 claims to be sister concern and is being refuted by the appellant, were passed on 06.05.2002, 21.05.2002 and 25.05.2002 respectively.
In Company Petition No. 57 of 2001, the objection to its maintainability at Allahabad was raised before the learned Company Judge who framed this issue as to whether the petition for winding up of the appellant having its registered office at Lucknow was maintainable at Allahabad or not. The reference was made on 15th October, 2003. While referring the dispute, the learned Company Judge who referred the dispute observed as follows:-
"At present there appears to be total anarchy in the matter of filing, entertaining and hearing of cases under Companies Act. In several cases it has given rise to disturbing situations which is against the interest of administration of justice. In company matters stakes involved are quite high and often large number of people are affected as in the case in hand. Hence it is all the more desirable in company matters to settle the jurisdiction dispute authoritatively, lest cases under Companies Act become res nullius like a fish in the sea or a bird in the sky, which becomes the property of the one who catches it first."
And framed the following question:-
Accordingly, the matter is referred to Division Bench for deciding the question of jurisdiction which is tentatively framed as follows:-
"Whether this company petition filed for winding up of the company (M/s Kamal Infosys Ltd, Respondent no. 1) having its registered office at Lucknow is maintainable in the High Court at Allahabad."
While the said reference was pending, the Directors of the other companies including Sri Arvind Mohan Johari & Another who had been subjected to criminal prosecution, had applied for bail that had been rejected and the matter went up to the Supreme Court in Criminal Appeal No. 1265-66 of 2004. It is in these criminal appeals, that the Apex Court was apprised of the pendency of the winding up petitions and the matter before the learned Company Judge, whereupon the Apex Court proceeded to issue twenty directions even though they were appeals in relation to the bail matters only. The Apex Court, however left it open to the parties at liberty to approach the Apex Court for any clarification or directions that may be necessary. The twenty directions issued alongwith the operative part of the order dated 03.11.2004 are extracted hereinunder:-
"Having heard the learned counsel for the parties, we are of the opinion that no fruitful purpose would be served by keeping the appellants in continued detention.
We are further of the opinion that all endeavours should be made to realise as much amount as possible from the personal and other assets of the appellants by putting them on sale or otherwise. For the aforementioned purpose, we direct:
1. All the amounts seized by CBI shall forthwith be placed at the disposal of the learned Company Judge.
2. The appellants herein shall also furnish details of their personal assets as also the list of their creditors and the bank accounts. Bank accounts of the appellants seized by CBI shall be released and the amount lying in the banks to the credit of the appellants shall also be deposited before the Company Judge.
3. The personal assets of the property shall be sold in such a manner as the learned Company Judge deems fit and proper but endeavours should be made to see that the maximum price is fetched as far as possible by selling the said properties.
4. The National Stock Exchange and the Bombay Stock Exchange are directed to deposit the money lying in the credit of the Company/appellants as early as possible subject to determination of the pending enquiry by SEBI. If any enquiry is pending, SEBI shall dispose of the same as expeditiously as possible.
5. Steps be taken by the learned Company Judge to direct the banks in which the appellants have accounts to remit the money lying in their credit to the court.
6. In fine, all the assets whether movable or immovable including shares, debentures, promissory notes, etc. lying with the appellants themselves or with their creditors or any other persons or authorities including CBI shall be placed at the disposal of the learned Company Judge.
7. A bank account shall be opened in a nationalised bank by the learned Company Judge which may be operated by such person or persons as may be authorised by it.
8. All the depositors including the depositors of City Cooperative Bank shall file their claims before the Company Judge and in case of any dispute, the claimants would be given opportunities to establish such claims.
9. In order to disburse the claims of the creditors, the learned Company Judge may appoint such number of presiding officer or officers as may be necessary for effectuating realisation of the amount by sale of the properties and disbursement thereof as well as disposal of the claims as may be found to be necessary. For the said purpose requisite direction(s) shall be issued by the learned Company Judge as regards realisation and disposal of the assets including sale of the movable or immovable properties, if any.
10. City Cooperative Bank shall within a week from today file the statement of claims in respect of the depositors before the learned Company Judge.
The claims of City Cooperative Bank shall have preference over the claims of the others. The depositors of City Cooperative Bank on establishing their claims, shall be paid through City Cooperative Bank.
11. In the event, the amounts and the assets lying at the disposal of the learned Company Judge are found to be insufficient to satisfy all the claims, subject to the preference given to City Cooperative Bank, the claimants shall be paid on a pro rata basis.
12. All claims which are pending before the learned Company Judge shall be deemed to have been filed pursuant to this order.
13. The depositors in relation to City Cooperative Bank shall through the Bank or otherwise file their claims within one month from the date of communication of this order for which City Cooperative Bank shall duly notify the depositors therefor.
14. It will be open to City Cooperative Bank Depositors Welfare Association and Century Consultants Investors Welfare Association to represent their respective members before the Company Judge or such presiding officer(s) as may be appointed in this behalf.
15. All further proceedings pending before any court in relation to the claim of the depositors both in relation to the Company and City Cooperative Bank shall remain stayed.
16. The Company Judge is hereby requested to supervise the proceedings wherefor he would be entitled to issue such direction or directions to the presiding officer, he may deem fit and proper. It will also be open to the learned Company Judge to issue a general direction by way of guidelines.
17. The appellants herein, CBI, City Cooperative Bank and the Official Liquidator are hereby directed to render all cooperation to the learned Company Judge for smooth conduct of the proceedings.
18. The appellants herein shall be entitled to scrutinise the books of accounts and other records and documents which have been seized by CBI for the purpose of assisting the learned Company Judge in finding out their assets and debts in the presence of the officer authorised in this behalf. They are also permitted to take notes from the respective books of accounts and other records and documents.
19. While disbursing the claims, the learned Company Judge or the presiding officer(s) shall take into consideration the fact that some persons have already received some amount from the appellants herein in terms of the order of the High Court dated 25-6-2003 as modified on 11-7-2003 and 9-10-2003.
20. All courts, tribunals and statutory authorities are hereby directed to produce all documents and papers which are in their power and possession in accordance with law, as and when called for by the learned Company Judge or the presiding officer(s) appointed in terms of this order.
The learned Chief Justice of the High Court is requested to place at the disposal of the learned Company Judge services of such number of officers and other employees as may be asked for by the learned Company Judge. The High Court shall also consider the desirability of placing services of such number of judicial officers as may be found to be necessary for expeditious disposal of the claim cases as also for other purpose, if any order in this behalf is passed by the learned Company Judge.
It would be open to the learned Company Judge to avail the services of Official Liquidator as also lawyers and their remuneration may be fixed by the learned Company Judge which would be realised from the assets of the appellants.
We are conscious of the fact that such directions could not have ordinarily been issued by this Court while disposing of a bail application but keeping in view the fact that the appellants herein had been released on interim bail in terms of the order dated 25-6-2003 on conditions and steps had already been taken to pay to the depositors their dues, we have issued the aforementioned directions in exercise of our power under Article 142 of the Constitution to do complete justice to all the parties.
The parties shall be at liberty to approach this Court for any clarification or direction or directions, if any occasion arises therefor.
The appellants herein shall be released on bail on furnishing personal bonds of Rs 50,000 with one surety of the like amount to the satisfaction of the Special Judicial Magistrate, CBI subject to the following conditions:
(i) They would surrender their passports before the Special Judicial Magistrate, CBI.
(ii) They would also file an undertaking that they would not leave the jurisdiction of the court without its prior permission.
(iii) They shall, save and except for cogent reasons, appear before the court on each and every date of hearing.
(iv) They shall not intimidate the witnesses nor interfere in any manner with the trial.
(v) They shall not do any act or acts or things which may delay the disposal of the criminal cases.
(vi) They shall render all cooperation to the learned Company Judge and the presiding officer.
These appeals are disposed of with the aforementioned directions. There shall be no order as to costs."
After these directions had been issued, the Division Bench which was seized of the matter of reference under the order dated 15.10.2003 proceeded to answer the same on 14th March, 2005 which judgment is reported in Registrar of Companies, U.P. & Uttaranchal, Kanpur & M/s. Kamal Infosys Ltd., Lucknow & Others 2005 (59) ALR 492, a copy of the said order is annexed as Annexure No. 1 to the supplementary affidavit.
Interestingly enough, this judicial pronouncement is final and it could not be disputed by the learned counsel for the respondents, that the same was between the same parties in the same company petition. The order dated 14th March, 2005 categorically recorded that an earlier judgment of the High Court in the case of Sumac International Ltd. Vs. M/s. PNB Capital Services Ltd & Another AIR 1997 Allahabad 424, that had held otherwise, had been rendered per incuriam, as the same did not take notice of the notification issued by the Hon'ble The Chief Justice on 5th August, 1975. The Division Bench took notice of the judgment in the case of Manju Varma Vs. State of U.P. (supra), as well and after quoting the relevant notifications and considering the judgments cited at the Bar concluded as follows:-
"To sum up, our conclusions are that in company matters, that Court has the jurisdiction in whose territorial jurisdiction the Company has the Registered Office. It is so necessary also for the reason that Directors of a Company may be prosecuted at hundred of places, as in a given case, share holders of the company may file complaints at different places throughout India. Section 10 (3) of the Act, 1956 clarifies the necessity further, as the Company may change the location of its registered office. In the instant case, registered office of the Company is at Lucknow. Jurisdiction of the Lucknow Bench in company matters ousted by the Notification dated 15.07.1949 has been restored vide Notification dated 05.08.1975. However, it is only upto the stage of winding up proceedings, and subsequent thereto, the case is required to be decided by this court. This position is crystal clear from the Notifications dated 05.08.1975, 04.01.2003 and 14.01.2003. The petitions require to be returned to the petitioners to be presented before the Lucknow Bench.
In view of the above, we are of the opinion that the instant petition is not maintainable before this Court as the registered office of the company is situated within the territorial jurisdiction of the Lucknow Bench. Reference is answered accordingly.
Send the papers back to the learned Judge."
It is to be noted that while answering the said reference, the order of the Apex Court aforesaid dated 03.11.2004 had not been referred too. A recall application was filed for cancelling the bail granted to those persons who had filed the criminal appeals before the Apex Court on the ground that they have misled the Court to pass orders. This recall application was taken up by the Apex Court on 4th May, 2005, the bail granted to the appellant therein were cancelled and the Apex Court recalled the order dated 3rd November, 2004. The fact of recalling of the order was noticed in detail in the following terms:-
"It is not in dispute that this Court passed the aforementioned order dated 3.11.2004 granting bail to the appellants herein relying on or on the basis of the representation made by them that all endeavours would be made to disburse to the claimants realise as much amount as possible from the personal and other assets of the Appellants by putting them on sale or otherwise. It was with that end in view, this Court directed:-
"The National Stock Exchange and the Bombay Stock Exchange are directed to deposit the money lying in the credit of the Company/Appellants as early as possible subject to the determination of the pending enquiry by SEBI. If any enquiry is pending, SEBI shall dispose of the same as expeditiously as possible."
This Court directed release of the appellants herein on bail on the conditions mentioned therein and issued several directives in exercise of its jurisdiction under Article 142 of the Constitution of India to do complete justice to all the parties. While considering application for grant of bail in a criminal case, this Court ordinarily cannot determine a dispute between the parties wherefor forums have been created under the statutes.
It appears that the recoveries have been directed to be made by the Stock Exchange in exercise of their power conferred upon them under the bye-laws governing the parties. Furthermore, several arbitration awards are said to have been passed in favour of the clients/investors and the members of the Stock Exchanges. The parties, therefore, must get their disputes determined in an appropriate forum.
The fact, however, remains that no amount as such is admittedly payable by the applicants Stock Exchanges. In their respective applications, as indicated hereinbefore, the Applicants had stated that they, in fact, would be entitled to realize a huge amount from the Appellants. In that view of the matter, we are of the opinion that the Appellants misled this Court in passing the said order dated 3.11.2004 by raising contention to the effect that a sum of Rs.17 crores and 13 crores are admittedly lying with the Bombay Stock Exchange and National Stock Exchange in the shape of bank guarantee money and securities margin money etc.
It is true that the prayers made by the applicants herein in their applications are confined to the directions issued against them but we are of the opinion, having regard to the peculiar facts and circumstances of this case, that if a substantial sum lying with them are not available for disbursement to the claimants, the very purpose for enlarging the Appellants herein on bail would not subserved and in that view of the matter the order dated 03.11.2004 granting bail to the Appellants herein should be recalled. Accordingly, the appellants, Arvind Mohan Johari and Anand Krishna Johari are hereby directed to surrender before the Trial Court within one week from date whereupon they may be taken into custody. If and when the disputes between the Stock Exchanges and the Appellants are adjudicated upon by a competent forum and/ or court of law, as a result whereof the Appellants would be in a position to repay the outstanding dues of the claimants, namely, M/s City Cooperative Bank Ltd. And M/s Century Consultants Ltd., they may apply for grant of bail afresh.
These applications are disposed of with the aforementioned observations and directions."
Certain miscellaneous applications were also pending in the said criminal appeals that came to be disposed of on 9th December, 2005 by the following order of the Apex Court which is extracted hereinunder:-
"In view of the fact that vide order dated 4.5.2005 this Court has recalled the order dated 3.11.2004, we are of the opinion that no order need be passed on these applications. The applicants would be at liberty to take recourse to the remedies available to them in law before appropriate forum."
These developments, namely the recall of the order and the answering of the reference by the Division Bench were all placed before the learned Single Judge and an objection was raised not to proceed with Company Petition No. 57 of 2001 but the learned Company Judge after extensively quoting the order of the Apex Court dated 03.11.2004 made a request to the Hon'ble The Chief Justice for passing an appropriate order in order to hear all the matters after consolidating them at one place including Company Petition No. 57 of 2001.
The said order is annexed as Annexure No. 3 to the supplementary affidavit. It also notices the cancellation of the bail and it's recall by the Apex Court as referred to hereinabove.
The then Hon'ble The Chief Justice on the aforesaid order dated 06.10.2005 passed an order on 30th November, 2005 directing all the matters to be heard at Allahabad by the then learned Company Judge by the following order:-
"Subject to any matters being heard in past already, let all the matters be heard at Allahabad by Hon'ble Mr. Justice Sunil Ambwani.
The matter came up before the Company Judge, whereupon again a preliminary objection was raised by the counsel of the appellant contending the non maintainability of Company Petition No. 57 of 2001 to be heard at Allahabad. The learned Company Judge overruled the said preliminary objection by the order dated 7th February, 2006 that is extracted hereinunder:-
"In this application filed by Registrar of Companies to wind up M/s Kamal Infosys Ltd. A provisional liquidator was appointed. The taking over of the assets were stayed on 29.01.2002 with directions, not to sell the assets and properties on the ground that the computer courses were being run in the institution, to the benefit of about four hundred students.
Shri Ritu Raj Awasthi representing respondent Nos. 1,2,3 and 6, namely private respondents Sri Narendra Kumar Shukla, Sri Nishtha Misrn and Ms. Divya Tripathi, has made a preliminary objection to the hearing of this petition at Allahabad. He also submits that courses are still being run and there are 19 members in the faculty and 350 students.
Supporting the preliminary objections Shri Awasthi submits that the Supreme Court by its order dated 4.5.2005 had recalled its earlier order dated 3.11.2004, releasing the Jauhari brothers on bail and directing all matters after connecting to be heard by the company Judge. He submits that by a subsequent order the Supreme Court on 9.12.2005 had clarified this matter.
A perusal of these orders shows that the Supreme Court had cancelled the orders enlarging the Jauhari Brothers on bail. The directions, however, that all the matters should be clubbed and heard at one place were not recalled. There is no indication in these orders that directions of the Supreme Court to club all the matters be heard by a nominated Bench (the Company Judge at Allahabad) with additional staff was ever recalled.
In pursuance of the aforesaid order of the Supreme Court, Hon'ble The Chief Justice has nominated the company Judge Allahabad to hear all the matters and thus some more filed pending at Lucknow has been transferred. The preliminary objections are, as such, overruled.
Shri Awasthi has prayed for dismissing the petition on the ground that the Jauhari Brothers were removed as Directors of the company and that the company has no concern with the allegations on which the winding up petitions were filed.
The Official Liquidator points out that CBI after inspecting all the matters has submitted a chargesheet against the Ex-Directors of M/s Kamal Infosys Ltd. as well. It had found complicity of Ex-Directors of Kamal Infosys Ltd. with Shri Arvind Mohan Jauhari, who was also Director of the Kamal Infosys Ltd. during the relevant period. In the chargesheet Shri Narendra Kumar Shukla is named and he is on bai. In the circumstances, I do not find it appropriate, to drop the proceedings against M/s Kamal Infosys Ltd.
Let the Managing Director of Kamal Infosys Ltd. file his affidavit stating the courses, which are being run by him, the arrangement of companies or the examining body, details of the members of faculty and students to consider to extend the order dated 29.01.2002.
The matter shall be taken up again on 02.03.2006. The order dated 29.01.2002 shall operate only till the next date.
Learned counsel for the respondent, Sri Mehta has urged that this order dated 7th February, 2006 also has not been challenged by the appellant.
There is yet another interesting turn on the legal issues namely that the earlier the judgment in the case of Sumac International Ltd. reported in AIR 1997 Allahabad 424 had been the guiding law in this regard which was held to per incuriam in the present case, itself in the reference which was answered on 14th March, 2005. In the same matter of Sumac International Ltd. (supra), a Division Bench taking notice of the answer on reference dated 14th March, 2005 and the other Apex Court judgments followed the law as explained in the present case by the Division Bench on 14.03.2005 and held that the Company petition in relation to a Company which had its registered office at Lucknow has to be instituted at Lucknow in view of the 1948 Amalgamation Order, and that its Institution at Allahabad would be treated to be void, leaving it open to the concerned Department to move a petition in accordance with law before the appropriate forum. The aforesaid judgment of the Division Bench is reported in 2006 (10) ADJ 86 Sumac International Ltd. Vs. M/s. PNB Capital Services Ltd & Another.
Sri Ashok Mehta, learned Senior Counsel for the respondents contends that if this Court comes to the conclusion that the Company petition in the present case was wrongly instituted at Allahabad then this opportunity should be left open and the Company petition, itself should be transferred to Lucknow for being dealt with by the learned Judge at Lucknow.
The issue of territorial jurisdiction as to where the Company Petition could be instituted and entertained is therefore the moot question which has to be determined on the strength of legal principles and the Statutory provisions applicable in this regard. A Company Petition for winding would lie before a Court that has territorial jurisdiction where the registered office of the company is situate for this Section 2(11) and Section 10 of the Companies Act, 1956 are extracted hereinunder :
Section 2 (11) "the Court" means, -
(a) with respect to any matter relating to a company (other than any offence against this Act), the Court having jurisdiction under this Act with respect to that matter relating to that company, as provided in section 10 ;
(b) with respect to any offence against this Act, the Court of a Magistrate of the First Class or, as the case may be, a Presidency Magistrate, having jurisdiction to try such offence ;
Section 10. JURISDICTION OF COURTS
(1) The Court having jurisdiction under this Act shall be -
(a) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2) ; and
(b) where jurisdiction has been so conferred, the District Court in regard to matters falling within the scope of the jurisdiction conferred, in respect of companies having their registered offices in the district.
(2) The Central Government may, by notification in the Official Gazette and subject to such restrictions, limitations and conditions as it thinks fit, empower any District Court to exercise all or any of the jurisdiction conferred by this Act upon the Court, not being the jurisdiction conferred -
(a) in respect of companies generally, by sections 237, 391, 394, 395 and 397 to 407, both inclusive ;
(b) in respect of companies with a paid-up share capital of not less than one lakh of rupees, by Part VII (sections 425 to 560) and the other provisions of this Act relating to the winding up of companies.
(3) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up."
There is no dispute that the registered office of the appellant/company is 6, Mall Avenue, Lucknow. There is also no dispute that the Company Petition No.57 of 2001 giving rise to this appeal was not instituted at Lucknow, and has been instituted at Allahabad. The division of territorial jurisdiction of the High Court between Allahabad and Lucknow is no longer res-integra and is settled by the two Apex Court decisions which still hold the field today namely, Nasiruddin Vs. State Transport Appellate Tribunal, 1975 (2) SCC, 671 and in the case of U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. State of U.P. and others, 1995 (4) SCC, 738. The cause of action for winding up of the company as also its registered office both combined together leave no room for doubt that this cause arose at Lucknow. The Company Petition for winding up of the appellant no.1 therefore could have only been instituted at Lucknow and it could not have been presented at Allahabad. This is clearly evident from the perusal of the provisions of the Companies Act, 1956 extracted hereinabove as also a bare reading of the 1948 Amalgamation Order as discussed and interpreted by the Apex Court in the two judgments referred to hereinabove.
The most important dimension of this case is that in respect of this very issue and in between the same parties a reference was made on 15.10.2003 which was answered on 14.03.2005 clearly holding that Company Petition No.57 of 2001 could have only been instituted at Lucknow, but only upto the stage of winding up proceedings in view of the notifications issued from time to time inasmuch as after the winding up the Company Petition has to travel to Allahabad in view of the notifications dated 15.07.1949 read with the notification dated 05.08.1975 which is discussed in detail in the said judgment that we do not find necessary to reproduce again. It was also held therein that the petition is required to be returned to the petitioner to be presented before the Lucknow Bench. This direction therefore was binding on the learned Company Judge and the only order which ought to have been passed by the learned Company Judge was to direct the Company Petition to be sent to Lucknow for being presented there. This a direct illustration of the applicability of the principles of res-judicata. The judgment dated 14.03.2005 is binding in all subsequent proceedings of the Court and it can not be re-opened on the strength of any other order unless the same has been reversed.
The learned Company judge instead of doing so again made a reference to Hon'ble The Chief Justice on 06.10.2005 for hearing all the matters together. This exercise could have been undertaken once the Company Petition had been returned back to Lucknow, and then the Hon'ble The Chief Justice could have passed the orders under the second proviso to Clause 14 of the 1948 Amalgamation Order or could have waited upto the stage of winding up to be sent back to Allahabad in the light of the notifications referred to hereinabove. The order impugned for winding up could not have been passed at Allahabad. The learned Single Judge in the impugned order dated 30.11.2006 has at internal page no.6 of the certified copy of the order recorded as follows "the proceedings at Lucknow were thereafter returned to be presented before the Lucknow Bench". The aforesaid recital is in our opinion perverse in as much as Company Petition No.57 of 2001 was never presented at Lucknow and was presented at Allahabad. Secondly, it was never returned to be presented at Lucknow nor is there anything on record to indicate the same. Sri Ashok Mehta, learned Senior Counsel for the respondent could not dispute this position. Thus the learned Single Judge incorrectly and against the record went on to state that the Company Petition had been returned to be presented at Lucknow. As a matter of fact no such exercise had been undertaken. The said assumption of the learned Single Judge being perverse and against record therefore militates against the respondents.
After the matter had been placed by the learned Company Judge before Hon'ble The Chief Justice vide order dated 06.10.2005 Hon'ble The Chief Justice does not appear to have taken notice of either the provisions of the Companies Act, 1956 or the ratio of the judgment in the case of Smt. Manju Verma Vs. State of U.P. (2005) 1 SCC, 73 or the final judgment between the parties themselves on a reference on 14.03.2005, and he passed the Administrative Order clubbing all the matters together to be heard at Allahabad by the then learned Company Judge who was nominated to hear the same including Company Petition No.57 of 2001. We do not find any justification for passing of the said order on the administrative side in the wake of the legal provisions indicated above, the pronouncement of the Apex Court in the case of Sri Nasiruddin Vs. State Transport Appellate Tribunal (Supra), in the case of U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. State of U.P. and others (Supra) and in the case of Manju Verma Vs. State of U.P. (Supra) and the binding effect of the order inter parties dated 14.03.2005. We are at pains to accept that the order of Hon'ble The Chief Justice on the administrative side could over rule the judicial pronouncements and the directions issued by the Division Bench on 14.03.2005. The order of the Hon'ble The Chief Justice dated 30.11.2005 extracted hereinabove was therefore an order against the provisions of law in respect of Company Petition No.57 of 2001 that could not have been issued in the exercise of any administrative powers. A jurisdiction could not have been conferred allowing the institution of the Company Petition at Allahabad or even its entertaining by the learned Single Judge before the stage of winding up. Since the order dated 30.11.2005 is oblivious of the aforesaid legal position, the same is void to the extent it relates to Company Petition No.57 of 2001 and is also open to scrutiny by us as the said order has resulted into the passing of the impugned final order of winding up on 30.11.2006. The order of winding up could not have come into existence at Allahabad as the Company Petition itself could not have been instituted or maintained at Allahabad.
The learned Single Judge however has taken recourse to and shelter of the order passed by the Apex Court on 03.11.2004 that has been extracted hereinabove. A perusal of the said order of the Apex Court while deciding a bail application has itself indicated that such orders are not ordinarily passed in the exercise of such jurisdiction. We however do not find any such direction of the Apex Court which can be construed to confer a jurisdiction for the institution of a Company Petition at Allahabad in violation of the legal position aforesaid in the exercise of jurisdiction under Article 142 of the Constitution of India. The Apex Court never held that a Company Petition that ought to have been instituted at Lucknow had been rightly instituted at Allahabad or would stand transferred to Allahabad. The Apex Court also did not take notice of the aforesaid status of the institution of Company Petition No.57 of 2001 nor did the Hon'ble The Chief Justice thought it proper to return back the Company Petition to be presented at Lucknow as directed by the Division Bench on 14.03.2005 nor did he pass any order under the 1948 Amalgamation Order for returning back the Company Petition to Allahabad.
Thus in our considered opinion the order of the Apex Court dated 03.11.2004 as it stood did not issue a direction that such a Company Petition which had been improperly instituted at Allahabad would continue to be entertained inspite of a legal mandate against it. To construe the order of the Apex Court in this manner would amount to conferring and giving consent to a jurisdiction to the Court at Allahabad which territorially could not have been exercised over Company Petition No.57 of 2001. The inference drawn by the learned Company Judge about the order of the Apex Court was an exercise that stretched beyond legally permissible limits. This was a patent lack of jurisdiction for all the reasons given hereinabove and the Apex Court direction can not be construed to infuse life into a totally void action. This is evident from all the decisions that have been cited at the bar with which we are entirely in agreement with and find that the impugned order of the learned Single Judge as well as the administrative order dated 30.11.2005 have brought about a situation that requires to be rectified. We are supported in our view by the Constitution Bench judgment in the case of A.R.Antulay Vs. R.S.Nayak and another, 1988 (2) SCC, 602. We may usefully refer to paragraph nos.36, 39, 91, 98, 103, 104, 110, 112, 206, 234, 235, 238 and 240 thereof. It has been held therein that a defect of jurisdiction goes to the root of the matter and the power to create jurisdiction being Legislative in character the same can not be conferred by consent. The said decision also holds in paragraph no.91 as to what is jurisdiction and it goes on to record in paragraph no.93 that even if there is an extra ordinary situation the Court can not enlarge the jurisdiction. The Court further holds in paragraph no.94 that it is appropriate to assume that the Court can never tend to act against law. It would therefore be safe to presume that in the present case also, even assuming that the directions under Article 142 of the Constitution of India issued by the Apex Court on 03.11.2004 did exist, then too also the same did not amount to enlarging the jurisdiction or conferring the jurisdiction in respect of Company Petition No.57 of 2001 at Allahabad to the extent indicated above.
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> We are conscious that the transfer of the Company Petition would have been possible had the Hon'ble The Chief Justice while sitting at Lucknow passed a judicial order in a Company Petition instituted at Lucknow for transferring it to Allahabad in terms of the decision in Smt. Manju Verma's case (Supra). This was never done in the present case. The Company Petition was instituted at Allahabad and by the method aforesaid came to be decided by the learned Company Judge assuming the jurisdiction which in our opinion was not possessed in respect of Company Petition No.57 of 2001. The legal infractions should not be left in doubt as it would cause more serious damage to public confidence and administration of justice. The contention of Sri Ashok Mehta that the directions of the Apex Court under Article 142 of the Constitution of India were never recalled also can not be accepted keeping in view the order dated 04.05.2005 as clarified on 09.12.2005 as extracted hereinabove. For all practical purposes the directions given by the Apex Court stood withdrawn on 04.05.2005. The learned Company Judge fell into the error in construing that the said directions continued to exist that were given on 03.11.2004. In our opinion all the 20 conditions that had been placed in the order of the Apex Court dated 03.11.2004 were in the shape of conditions attached to the bail that was granted to the appellants therein. Once the bail was cancelled the conditions of bail automatically stood vacated. The Apex Court itself commented upon the order dated 03.11.2004 having been obtained by misleading the Court and accordingly corrected the said error by passing the order on 04.05.2005. Article 142 of the Constitution of India reads as under: "142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself." We may refer to some of the judgments of the Apex Courts in this regard that throw light as to the scope and extent of any directions issued under Article 142 of the Constitution of India. We have already referred to the Constitution Bench judgment in the case of A.R.Antule Vs. R.S.Nayak (Supra). In addition thereto reference be had to the Apex Court decisions in the case of National Aluminium Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. And another, (2004) 1 SCC, 540, the judgment in the case of Zahira Habibullah Sheikh and another Vs. State of Gujarat and others, (2004) 5 SCC, 353 and the judgment in the case of Bharat Sewa Sansthan Vs. U.P. Electronics Corpn. Ltd., (2007) 7 SCC, 737 and the judgment in the case of Laxmidas Morarji (Dead) by Lrs. Vs. Behrose Darab Madan, (2009) 10 SCC, 425. A perusal of the ratio of the aforesaid judgments would leave no room for doubt that Article 142 of the Constitution of India can not as a matter of principle be exercised for conferring jurisdiction on a Court which it otherwise does not possess under the Statute. This would be distinct from the transfer of a petition or such other directions that may be necessary for doing complete justice in any cause or matter pending before the Apex Court. In the instance case no such matter was pending before the Apex Court and therefore to presume that there were directions to club the Company Petition No.57 of 2001 to be heard at Allahabad was a totally erroneous approach adopted by the learned Single Judge in the present case. For all the aforesaid reasons we are clearly of the opinion that the impugned judgment dated 30.11.2006 was an exercise that suffers from patent lack of jurisdiction. The appeal is accordingly allowed and the judgment of the learned Single Judge for winding up the appellant's company in Company Petition No.57 of 2001 is set aside. All the interim orders passed in Company Petition No. 57 of 2001 also stand discharged. We however, leave it open to the respondents to take such recourse to the provisions of law that may be available keeping in view the binding effect of the Division Bench order dated 14.03.2005. The appeal is accordingly allowed. No order as to costs.