Baranagore Jute Factory Plc. (in Liqn) v. O/L, High Court, Calcutta
2018-01-16
SAHIDULLAH MUNSHI, SHEKHAR B.SARAF
body2018
DigiLaw.ai
JUDGMENT : Shekhar B. Saraf, J. 1. These are applications arising out of appeals preferred against an order passed by the learned Single Judge dated 11th January, 2018. It is the case of the appellant/petitioners that the learned Single Judge has decided to hear out only one particular issue regarding whether the winding up proceeding is to be permanently stayed or not. It is their contention that as per the Supreme Court order dated August 30, 2017, the Company Judge has been directed to dispose of all the applications and the company petition itself without any delay. It is their submission that all the applications have to be heard out along with the company petition and simpliciter hearing out the company petition with regard to permanent stay of the winding up proceeding would be contrary to the direction of the Supreme Court. Mr. S.K. Kapur, Learned Senior Advocate, appearing on behalf of the petitioners/appellants placed reliance on paragraphs 17 and 18 of the Apex Court judgment dated August 30, 2017 (BARANAGAR JUTE FACTORY PLC. MAZDOOR SANGH (BMS).... APPELANT v. BARANAGORE JUTE FACTORY PLC. ETC.....RESPONDENTS I.A. NOS. 13 TO 36 OF 2017; IA No. 61787/2017 AND IA No. 77072/2017 IN CIIL APPEAL NO(S). 4298-4299/2017 WITH CONMT. PET. (C) NOS. 824-827/2017 IN C.A. NOS. 4302-4305/2017; CONMT. PET. (C) NOS. 840-842/2017 IN C.A. NOS. 4306-4308/2017; CONMT. PET. (C) NOS. 1485-1486/2017 IN C.A. NOS. 4298-4299/2017) that are set out below : "17. As we have noted above, the Company Court is in seism of the matter for about three decades in Company Petition No. 2/1987. This Court, we find at least on three occasions (on 27.10.2014, 12.03.2015 and 4.3.2016), had issued directions to the Company Court to dispose of all the applications and also the main petition. 18. All the parties appearing before us submit that they will extend full cooperation to the Company Judge to dispose of the applications and the Company Petition itself without any delay." 2. Counsel appearing on behalf of the respondents submits that the impugned order is not appealable as no issue has been finally decided by the learned Single Judge and the same would, accordingly, not be appealable under Clause 15 of the Letters Patent. Clause 15 of the Letters Patent is set out hereinbelow for convenience : "15.
Counsel appearing on behalf of the respondents submits that the impugned order is not appealable as no issue has been finally decided by the learned Single Judge and the same would, accordingly, not be appealable under Clause 15 of the Letters Patent. Clause 15 of the Letters Patent is set out hereinbelow for convenience : "15. Appeal from, the Courts of original jurisdiction to the High Court in its appellate jurisdiction.-And We do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgement (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of S. 107 of the Government of India Act (in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to sec. 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgement of one Judge of the said High Court or one Judge of any Division Court, pursuant to sec. 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgement declares that the case is a fit one for appeal, but that the right of appeal from other judgements of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council as hereinafter provided." 3. Mr.
Mr. Anirban Roy, Advocate, appearing on behalf of the respondent further submits that the Supreme Court at paragraphs 19 and 20 has made it clear that the Company Judge, High Court of Calcutta is to take up the matter on a day to day basis and dispose of the same expeditiously. He places the relevant paragraphs that are set out below: "19. In the above circumstances, we request the Company Judge, High Court of Calcutta to take up the Applications and Company Petition on a day to day basis and dispose of the same expeditiously, preferably within a period of four months. Any adjournment by any party, shall be granted only on the imposition of cost of Rs. 10,00,000/- (Rupees Ten Lacs) and that too only for a short period, be it on any reason. 20. Yet with all these safeguards, in case the Company Judge is not in a position to dispose of the applications/petition on account of non-cooperation on the part of the respondents herein, it will be open to the Company Judge to make a Report to this Court, in which case, this Court will think of appropriate steps even by appointing a Receiver for the Company." 4. The concluding portion of the impugned order of the learned Single Judge is delineated below for the sake of clarity: "For the reasons aforesaid it is recorded that Mr. S.N. Mitra has completed his submissions only on the issue of whether or not winding up proceeding in respect of the company stands permanently stayed. This is for the purpose of determining the said issue as an issue of law as it is the opinion of this Court that the case may be disposed of on the answer to this issue. For that purpose determination of other issue is postponed. On the passing of this order Mr. S.N. Mitra prays for stay of operation of it, in so far as his submissions are recorded as. concluded, as his client wants to test the same in appeal, inter alia, on the ground that it is contrary to paragraphs 1, 13, 17 and 18 of the said judgement dated 30th August, 2017. Mr. Abhrajit Mitra opposes the prayer for stay. The prayer for stay is considered and refused. List on 16th January, 2018 for further hearing." 5.
concluded, as his client wants to test the same in appeal, inter alia, on the ground that it is contrary to paragraphs 1, 13, 17 and 18 of the said judgement dated 30th August, 2017. Mr. Abhrajit Mitra opposes the prayer for stay. The prayer for stay is considered and refused. List on 16th January, 2018 for further hearing." 5. It is evident from the order passed that the learned Single Judge has directed the learned counsel to address him on the issue with regard to permanent stay of winding up proceeding. He has further stated that for the purpose of determination of the other issues, the same are postponed. 6. With reference to the issue of an appeal under clause 15 of the Letters Patent, the Division Bench of the Calcutta High Court in the judgment of Samantha Fay and Ors. v. Saloo Choudhury and Ors., reported in 2009 (3) CHN 848 [Surinder Singh Nijjar, CJ. & Biswanath Somadder, J.] examined the same in great detail in paragraphs 28 and 29 that are set out below : "28. It is true that routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment may not be appealable. Similarly, orders that may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the party would not be appealable. It is, however, settled that although an order may not finally and conclusively determine the rights of parties with regard to all or any matter in controversy but may have vital effect on valuable rights and obligations of the parties. Such order would clearly be appealable, under clause 15 of the Letters Patent. 29. We may also notice here the observations of the Supreme Court in Midnapore Peoples' Cooperative Bank Ltd. (supra) (2006) 5 SCC 399 as under : "14. The above principle was reiterated in Mithailal Dalsangar Singh v. Annabai Devram Kini, 2003 (10) SCC 691 and Subal Paul v. Molina Paul, 2003 (10) SCC 361 . In the latter case, this Court held : (SCC pp. 370-71, paras 32 & 35) 32. While determining the question as regards clause 15 of the Letters Patent, the Court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not.
In the latter case, this Court held : (SCC pp. 370-71, paras 32 & 35) 32. While determining the question as regards clause 15 of the Letters Patent, the Court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final; a judgment has been rendered, clause 15 of the Letters Patent would be attracted. 35. ...... Clause 15 of the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and jurisdiction of the High Court under clause 15 to entertain any appeal from a judgment would be effective. 15. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories : (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. 16. The term judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9) CPC and orders enumerated in Order 43 Rule 1 COC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent.
Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not 'judgments' for the purpose of filing appeals provided under the Letters Patent." 7. We are of the opinion that the above directions passed by the Learned Single Judge do not prejudice any of the parties. It is clear that the above directions cannot give rise to any cause of action at this stage. In fact, admission of these appeals at this stage would amount to interference with the above directions passed by the Apex Court for an expeditious hearing by the Company Court Judge. 8. We are of the opinion that the learned Single Judge till now has not decided on any issue and postponement of other issues as indicated in the impugned order does not amount to a "Judgment" as contemplated in Clause 15 of the Letters Patent and accordingly no appeal lies therefrom. 9. In view of the above, this Court holds that these company applications are premature and have no merit and are liable to be dismissed. 10. With the above observations, the applications stand disposed off. As nothing remains in the appeals, the same are treated as on the day's list by consent of both the parties and the applications and appeals are dismissed. It is made clear that we have not entered into the merits of the matter.