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In Re: the Lakhmidas Khimji Spinning and Weaving Company Ltd. (In Liquidation) - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 23 of 1910
Judge
Reported in(1911)13BOMLR558
AppellantIn Re: the Lakhmidas Khimji Spinning and Weaving Company Ltd. (In Liquidation);goverdhandas Khattao
Respondent;j. Sanders Slater
DispositionAppeal dismissed
Excerpt:
.....act (vi of 1882), section 169-company-order in winding-up proceedings-appeal against the order-notice of appeal-delay in service of notice- excuse of delay. ;in the winding-up proceedings of a company an order was passed by the court on the 12th april 1910. an appeal against the order was lodged on the 22nd idem; but the notice required by sections 169 of the indian companies act 1882 was not served on the respondent until the 9th may 1910. in the meanwhile, at the respondent's attorneys' request, the appellant's attorneys furnished a copy of the memo, of appeal on the 29th april 1910. the three weeks period prescribed by sections 169, having expired on the 3rd of may 1910, the appellants moved the appeal court for extension of time until the 9th may 1910 :- ;(1) that for the..........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.....
Judgment:

Basil Scott, Kt., C.J.

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.

4. This is an appeal from an order made or given in the matter of a winding up having been made on a summons taken out under Sections 214 of the Indian Companies Act.

5. We, therefore, hold that we are unable to hear this appeal.

6. Owing to no notice of the preliminary point, which has proved fatal to the appellant, being given, a very large mass of evidence has been printed with the concurrence of both sides. This forms a very large item in the costs of appeal incurred up to this date. Under the circumstances we think the fairest order to make is to dismiss the appeal, each party bearing their own costs.

7. Cross-objections also dismissed.


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