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Rakesh Kumar Jain, Ex-Directors, Srishti Carriers Pvt. Ltd. v. Banaras Beads Limited - SPECIAL APPEAL No. 84 of 2006 [2006] RD-AH 2146 (27 January 2006)


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Court No.32

Special Appeal No.84 of 2006

Rakesh Kumar Jain vs. Banaras Beads Limited

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

Instant special appeal, under the Rules of the Court, is preferred against the orders of the Hon'ble Company Judge of this Court dated 23.12.2005, 30.8.2005, 21.10.2005 and 5.12.2005 in Company Petition No.46 of 1996.

We have heard learned counsel for the appellant and also perused the aforesaid orders.

It appears that the notices for winding up of the company, M/s Shristhi Careers Private Limited, were published under Rule 24 of the Companies Court Rules, 1959 on 16.10.1999 and the order for winding up was passed on 5.1.2000 but for five years and more, the petitioner, who was the Director of the Company, did not file statement of affairs with the official liquidator.  Considering all the facts and circumstances of the case and the conduct of the Ex Director of the company the Hon'ble Company Judge vide order dated 30.8.2005 issued non-bailable warrant against the appellant.  The warrant remained unserved on account of lack of whereabouts of the appellant, who, after putting his appearance some time in the year 1997 before this Court, absented thereafter and this resulted in the subsequent orders dated 21.10.2005 and 5.12.2005.  In the facts and circumstances of the case and considering the conduct of the appellant the Hon'ble Company Judge on 5.12.2005 passed the order for registration of a criminal case and investigation by the Central Bureau of Investigation.  It is in pursuance to this order the appellant entered his appearance on 23.12.2005 giving his correct address etc.  The Hon'ble Company Judge, however, has directed that he should appear before the Chief Judicial Magistrate and furnish sureties along with undertaking that he will appear before this Court or before the Official Liquidator on every date fixed in the company petition.

Learned counsel for the appellant submitted that there was no occasion to direct for registration of criminal case against the appellant and investigation by the C.B.I. and, therefore, the orders passed by the Company Judge are erroneous in law.

Considering the submissions made by the learned counsel for the petitioner, we find that the present appeal has been filed under Chapter VIII Rule 5 of the Rules of the Court.  The appeal under the aforesaid provision is maintainable against a judgment of the Hon'ble Single Judge.  In our view, the orders impugned in the present appeal cannot be said to be a judgment of Hon'ble Single Judge and, therefore, the special appeal under Chapter VIII Rule 5 of the Rules of the Court is not maintainable. The orders impugned in this appeal have been passed in the course of proceeding for ensuring the presence of the appellant and also to investigate into his conduct duping huge revenue payable to the income tax department as well as the amount payable to private persons.  With respect to the allegations of large scale defalcation of public money the Hon'ble Single Judge has directed the investigation by

Central Bureau of Investigation.  Neither any issue has been decided finally nor the right of the parties have been adjudicated nor it can be said that final relief has been granted to any of the party by means of the impugned orders.  The question as to when an order can be said to be a "judgment" came up for consideration before a Full Bench of this Court in the case of Sital Din & others Vs. Anant Ram, 1933 A.L.J. 127 (FB) and considering the provisions of the Letters Patent of the High Court, it was held: -

".......on a reading of several clauses of the Letters Patent of the High Court we have come to the conclusion that a final decision, which effectually disposes of the appeal before the High Court, should amount to a judgment, whether it amounts to a decree or not."

After considering the entire case law on the subject in the case of State of U.P vs. Kumari Renu Tiwari, 1993 (2) UPLBEC 1325 the following propositions were laid down: -

"(1) When the term "judgment" is used in a Statute or rule linked with the term "decree" as defined in the Code of Civil Procedure, it will have a restricted and narrow meaning but when it is not so linked, it will have a wider connotation;  

(2) ordinarily for an adjudication to be a "judgment" it should bring about termination of the proceeding in which the adjudication is made; and

(3) an order passed on an application for interim relief is ordinarily not a "judgment" but it will qualify to be  called ''judgment' if it affects valuable right of the party or decides an important aspect of the trial and the effect of the order on the party concerned is direct and immediate rather than indirect and remote"

None of the orders, in the present case, qualify the aforesaid tests to become judgment, which is a condition precedent for maintainability of the appeal under Chapter VIII Rule 5 of the Rules of the Court.

Even otherwise, considering the facts and circumstances of the case and the conduct of the appellant, as noticed by the Hon'ble Single Judge, in the impugned orders, we do not find any reason to interfere with the order of the Hon'ble Single Judge.

Accordingly, the special appeal is not maintainable and is dismissed summarily.




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