Skip to content


Dundappa Shivalingappa Adi Vs. S.G. Motor Transport Company (P) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1966Kant150; AIR1966Mys150; [1967]37CompCas114(Kar); (1965)1MysLJ557
ActsCompanies Act, 1956 - Sections 2(2), 433, 482, 483 and 634; Court fees Act, 1870 - Schedule - Article 11
AppellantDundappa Shivalingappa Adi
RespondentS.G. Motor Transport Company (P) Ltd. and ors.
Appellant AdvocateN.A. Mandgi, Adv.
Respondent AdvocateGovernment pleader
Excerpt:
.....its ultimate or incidental results or consequences to determine the character of the levy. writ petitions are allowed. - 9. in that view of the matter, it is impossible for any one to assert that an order like the one made by narayan pai j. an order may be enforced like a decree but may not have the force of a decree. schedule i, article 1 schedule ii, article 17 (vii) schedule ii, article 18 (a) schedule ii, article 1 (d). 16. it is perfectly plain that none of these provisions is applicable. if an appeal like the one brought by the appellant is provided for by article 11 of schedule ii, article 1 of schedule i becomes inapplicable......was that prescribed by one or the other of the following provisions of the act: schedule i, article 1 schedule ii, article 17 (vii) schedule ii, article 18 (a) schedule ii, article 1 (d). 16. it is perfectly plain that none of these provisions is applicable. schedule i, article 1, refers to an appeal not otherwise provided for in the act. if an appeal like the one brought by the appellant is provided for by article 11 of schedule ii, article 1 of schedule i becomes inapplicable. further the difficulty presented by schedule i, article 1, is that it is impossible to make any valuation of the right of the person making an application for an order that the company shall be wound up under section 433 of the companies act, 1956. schedule ii, article 17 (vii), is equally inapplicable.....
Judgment:

Somnath Iyer, J.

1. The question is whether the court fee paid on the memorandum of appeal is adequate.

2. The appellant made an application under section 433 of the Companies Act, 1956, for an order that a company called S.G.Motor Transport Company (Private) Ltd. be wound up. Narayana Pai J. refused that under, and so the appellant appeals.

3. According to the appellant, a court-fee of Rs. 2-8-0 paid by him is what is prescribed for the appeal brought by him by article 11 of Schedule II to the Court-Fees Act, 1870 (Central Act VII of 1870) (as amended by Bombay Act XII of 1954). It is undisputed that the court-fee payable on the appeal preferred by the appellant is the court-fee prescribed by that Act, since the law in regard to court-fees operating in this State when the application for winding up of the company was preferred was that law. Article 11 of Schedule II to that Act reads:

------------------------------------------------------------------------ Number - Proper fee ------------------------------------------------------------------------ II. Memorandum of appeal (b) to a High Court Two rupees eight when the appeal is not or Chief annas. from a decree, or an Controlling order having the force Executive or of a decree and is Revenue Authority presented. ------------------------------------------------------------------------

4. We are asked to say that this is an appeal from an order which does not have the force of a decree and since it is presented to this court, no court-fee in excess of Rs. 2-8-0 is payable on the appeal. Mr. Government Pleader contends that this article of Schedule II to the aforesaid Court-Fees Act has no application, since the order made by Narayana Pai J. is an order having the force of a decree, and therefore the appeal falls outside the provisions of this article.

5. Mr. Government Pleader maintained the argument that an order made by the court under the Companies Act refusing an order that the company shall be wound up, is an order which finally determines the right of the person who made the application for the order and is therefore a decree.

6. In order to understand the expression 'having the force of a decree' occurring in this article of the Court-Fees Act, it would be useful to derive guidance from the definition of a 'decree' contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree is a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy before the court. It was maintained by Mr. Government Pleader that one of the matters in controversy before Narayana Pai J. was, whether there should be an order that the company shall be wound up, and that the decisions by which that order was made was a formal adjudication conclusively negativing the right of the petitioner to obtain that order. It does not appear to us that the order made by Narayana Pai J. has the force of a decree.

7. Now it should be remembered that an application that a company shall be wound up is an application which can be sustained on many grounds. But it will be seen that section 433 of the Companies Act, under the provisions of which the application was made in the present case, does not confer on any one an absolute right to seek an order that the company shall be wound up, but confers a discretionary power on the court to make an order that there shall be the winding up of the company. The opening words of section 433 are:

' A company may be wound up by the court,-.....'

8. The word ' may ' occurring in this part of the section makes it clear that the power to wind up a company is discretionary and that there is no right in any one to obtain an order that the company shall be wound up. The purpose of an order that a company shall be wound up is the realisation of the assets of the company had a proper and expeditious distribution of those assets according to law. In an order that a company shall be wound up or shall not be wound up, there is no adjudication of any right of any person in controversy before the court.

9. In that view of the matter, it is impossible for any one to assert that an order like the one made by Narayan Pai J. refusing an order that the company shall be wound up, has the force of a decree.

10. That that is the correct way of understanding that order is clear from the provisions of section 483 of the Companies Act, which reads:

' Appeals from any order made, or decision given, in the matter of the winding up of a company by the court shall lie to the same court to which in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision of the court in cases within it ordinary jurisdiction.'

11. It is under the provisions of this section that the appeal has been preferred in this case, and when this section is read with section 482 it becomes clear that it is difficult to sustain the endeavour to give the order by which the winding up of the company is refused, the status of an order having the force of a decree.

12. Section 482 reads:

' Any order made by a court for, or in the course, of winding up company, shall be enforceable at any place in India, other than that over which such court has jurisdiction, by the court which would have had jurisdiction in respect of the company if its registered office had been situate at such other place, and in the same manner in all respects as if the order had been made by that court.'

13. There is nothing in section 634 to which Mr. Government Pleader referred in support of his contention that the order made by Narayana Pai J. has the force of a decree. That section reads:

' Any order made by a court under this act may be enforced in the same manner as a decree made by the court in a suit pending therein.'

14. We were asked to say to Mr. Government Pleader that, since the order made by Narayana Pai J. is an order which may be enforced in the same manner as a decree by him in a suit pending before him, that order has the force of a decree. Mr. Mandagi, in our opinion, is right in saying that there is nothing in this section which can sustain the contention of Mr. Government Pleader. It is one thing to say that an order may be enforced in the same manner as a decree and another to say that an order has the force of a decree. The enforceability of an order by the employment of the same process by which a decree may be enforced, does not confer upon the order which can be so enforced, the attributes of a decree. An order may be enforced like a decree but may not have the force of a decree.

15. Mr. Government Pleader however suggested that the court fee payable was that prescribed by one or the other of the following provisions of the Act:

schedule I, article 1 schedule II, article 17 (vii) schedule II, article 18 (a) schedule II, article 1 (d).

16. It is perfectly plain that none of these provisions is applicable. Schedule I, article 1, refers to an appeal not otherwise provided for in the Act. If an appeal like the one brought by the appellant is provided for by article 11 of Schedule II, article 1 of Schedule I becomes inapplicable. Further the difficulty presented by Schedule I, article 1, is that it is impossible to make any valuation of the right of the person making an application for an order that the company shall be wound up under section 433 of the Companies Act, 1956. Schedule II, article 17 (vii), is equally inapplicable since that article refers to a suit. Schedule II, article 18(e), is similarly inapplicable since that article refers only to an application. Schedule II, article 1 (d), is again inapplicable since that article prescribes the court fee payable on application or petitions and not on appeals.

17. Our decision, therefore, is that the court-fee paid is correct.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //