PETITIONER:<\/p>\n
SHRI RAM NARAIN<\/p>\n
Vs.<\/p>\n
RESPONDENT:<\/p>\n
THE SIMLA BANKING & INDUSTRIAL CO.LIMITED.<\/p>\n
DATE OF JUDGMENT:<\/p>\n
09\/05\/1956<\/p>\n
BENCH:<\/p>\n
JAGANNADHADAS, B.
\nBENCH:
\nJAGANNADHADAS, B.
\nBOSE, VIVIAN
\nSINHA, BHUVNESHWAR P.<\/p>\n
CITATION:
\n1956 AIR 614 1956 SCR 603
\nACT:
\nBanking Companies Act, 1949 (X of 1949) as amended by Act
\nLII of 1953, ss. 45-A, 45-B, 45-C-Displaced Persons (Debts
\nAdjustment) Act, 1951 (LXX of 1951), ss. 3, 28-Overriding
\neffect as against all other laws-Purpose and policy of the
\ntwo Acts-Tribunal under Act LXX of 1961-Whether a Court-
\nTransfer of proceedings under s. 45-C of the Banking
\nCompanies Act-Period of limitation.<\/p>\n
HEADNOTE:
\nThe appellant, a displaced person, bad a fixed deposit in
\nthe Lahore Branch of the respondent Bank which had its
\nhead-office at Simla, and he also had at the time a cash-
\ncredit account in the Bank. As the Bank refused to pay the
\namount of fixed deposit on its maturity but adjusted -it
\ntowards part payment of the amount said to be due from him,
\nhe filed an application to the Tribunal at Banaras under s.
\n4 of the Displaced Persons (Debts Adjustment) Act, 1951,
\nclaiming the amount of the fixed deposit as a debt due from
\nthe Bank. During the pendency of the application there were
\nproceedings taken for winding up the Bank in the High Court
\nof Punjab. On the 3rd January 1953 a decree was passed by
\nthe Tribunal and the appellant filed an application before
\nit for execution of the decree, which, ultimately, was
\ntransferred to the Bombay High Court under the provisions of
\nthe Code of Civil Procedure. The appellant’s application
\nbefore the Bombay High Court for the attachment of the
\nproperty belonging to the Bank and situate in Bombay was
\nordered on the 18th June 1954. On the 26th June 1954 the
\nOfficial Liquidator of the Bank obtained an order from the
\nPunjab High Court purporting to be one under s. 45-C of the
\nBanking Companies Act, transferring to itself from the Court
\nof the Banaras Tribunal the proceedings before it for
\nexecution of the decree obtained against the Bank by the
\nappellant, and subsequently the order of attachment passed
\nby the Bombay High Court was set aside by the High Court of
\nPunjab on the ground that (1) the provisions of the Banking
\nCompanies Act as amended in 1953 had an overriding effect,
\nand that exclusive jurisdiction was vested in the Punjab
\nHigh Court notwithstanding anything in the Displaced
\n-Persons (Debts Adjustment) Act, 1951 and (ii) there was a
\nvalid order of transfer to the Punjab High Court, of the
\nexecution proceedings taken by the appellant in respect of
\nhis decree. The appellant appealed to the Supreme Court.
\nHeld, that (1) in view of the wide and’ comprehensive
\nlanguage of ss. 45-A and 45-B of the Banking Companies Act,
\n1949, as
\n604
\namended in 1953, the proceeding to execute the decree
\nobtained by the appellant from the Tribunal against the Bank
\nand all other incidental matters arising therefrom are
\nwithin the exclusive jurisdiction of the Punjab High Court;
\n(ii) whatever may be the inter se position between the
\nprovisions of the Banking Companies Act and those of the
\nDisplaced Persons (Debts Adjustment) Act in so far as such
\nprovisions relate to displaced debtors, the jurisdiction
\nclearly and definitely vested in the High Court by the very
\nspecific and comprehensive wording of s. 45-B of the Banking
\nCompanies Act cannot be said to be overridden or displaced
\nby anything in the Displaced Persons (Debts Adjustment) Act,
\nin so far as they relate to displaced creditors;
\n(iii) the Tribunal which is to exercise the jurisdiction
\nfor executing the decree in question is a “court” within the
\nmeaning of s. 45-C of the Banking Companies Act, whatever
\nmay be its status when it passed the decree as a Tribunal;
\n(iv) having regard to the scheme and policy of ss. 45-B and
\n45-0 of the Banking Companies Act, in respect of pending
\nmatters which have not been brought to the notice of the
\nCourt by the Liquidator within three months, there is
\nnothing to prevent the Court exercising its power of
\ntransfer at such time when it is brought to the notice of
\nthe Court.<\/p>\n
JUDGMENT:
\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 313 of 1955.
\nAppeal by special leave from the judgment and order dated
\nthe 12th May 1955 of the Punjab High Court at Chandigarh in
\nLiquidation Miscellaneous No. 72 of 1954.
\nJ. B. Dadachanji. and Rameshwar Nath, for the appellant.
\nM. C. Setalvad, Attorney-General for India and Ratanlal
\nChowla, for the respondent.
\n1956 May 9. The Judgment of the Court was delivered by
\nJAGANNADHADAS J.-This is an appeal by special leave against
\nan order of the High Court of Punjab dated the 12th May,
\n1955, in the following circumstances.
\nThe appellant was a resident of Lahore who came over to
\nIndia in or about November, 1947, and took up residence at
\nBanaras as a displaced person. He
\n605
\nhad, prior to the 15th August, 1947, a fixed deposit of Rs.
\n1,00,000 in the Lahore Branch of the Simla Banking and
\nIndustrial Co. Ltd. (hereinafter referred to as the Bank)
\nwhich had its head-office at Simla. He had also at the time
\na cash-credit account in the Bank. The fixed deposit
\nmatured in 1948. The Bank did not pay the amount to the
\nappellant in spite of repeated demands but seems to have
\nadjusted it towards part payment of a sum of Rs. 4,00,000
\nwhich is alleged to have been due from the appellant to the
\nBank in his cash-credit account and which the appellant
\ndisputed and denied. On the 7th November, 1951, the
\nDisplaced Persons (Debts Adjustment) Act, 1951 (LXX of 1951)
\nwas passed providing certain facilities and reliefs to
\ndisplaced debtors and displaced creditors. Section 4 of
\nthat Act empowered the State Government to specify any civil
\ncourt or class of civil courts, ,As the Tribunals having
\nauthority to exercise jurisdiction under the Act for areas
\nto be defined therein. Section 13 of the Act enabled a
\ndisplaced creditor claiming a debt from any person who is
\nnot a displaced person to make an application for recovery
\nthereof to the Tribunal having local jurisdiction in the
\nplace where the said creditor resides, and provided for the
\npurpose a special limitation of one year from the date when
\nthe Act came into force. Admittedly the appellant is a
\ndisplaced person, and the Bank is not a displaced Bank,
\nwithin the meaning of those expressions as defined in the
\nsaid Act. Taking advantage of these provisions, the
\nappellant filed on or about the 24th April, 1952, an
\napplication (Case No. I of 1952) to the Tribunal at Banaras
\nconstituted under section 4 of the Act, claiming the fixed
\ndeposit amount of Rs. 1,00,000 as a debt due from the Bank.
\nDuring the pendency of this proceeding there was an appli-
\ncation on the 27th December, 1952, under the Indian
\nCompanies Act, 1913 (VII of 1913) in the High Court of
\n‘Punjab by some creditors for the winding up of the Bank.
\nOn the 29th December, 1952, an ex parte interim order was
\npassed by the High Court under section 171 of the Indian
\nCompanies Act staying proceedings in all suits and
\napplications pending against
\n606
\nthe Bank, at the time. The application-Case No. I of 1952-
\nfiled by the appellant before the Banaras Tribunal was also
\nspecified therein. It would appear however that before the
\norder was communicated to the Tribunal, the said case before
\nit was disposed of and a decree was passed on the 3rd
\nJanuary, 1953, against the Bank for the sum claimed with
\nfuture interest at three per cent. per annum. On the 6th
\nJanuary, 1953, the appellant filed an application before the
\nTribunal for execution of the decree and it was numbered as
\nExecution Case No. 8 of 1953. It appears that on or about
\nthe 27th January, 1953, one Mr. D. D. Dhawan was appointed
\nby the Punjab High Court as a Provisional Liquidator of the
\nBank. On the application of certain petitioning creditors
\nin the winding up proceedings, the High Court passed another
\norder under section 171 of the Indian Companies Act on the
\n30th January, 1953, staying execution of the decree against
\nthe Bank obtained by the appellant. This order also does
\nnot appear to have been communicated to the Tribunal by the
\nCourt. But the Tribunal was informed generally about the
\nsituation by a letter of the Provisional Liquidator dated
\nthe 13th March, 1953. Thereby, the attention of the
\nTribunal was invited to section 171 of the Indian Companies
\nAct which enacted that pending proceedings could not be
\nproceeded with except with the leave of the Court. The
\nTribunal was accordingly requested by this letter of the
\nLiquidator to stay further proceedings before it in Case No.
\nI of 1952. In view of this intimation, the Tribunal passed
\nan order dated the 20th March, 1953, staying execution,
\nnotwithstanding a further application by the appellant dated
\nthe 16th March, 1953, to proceed with the execution. On the
\n21st March, 1953, the Provisional Liquidator filed an appeal
\nin the Allahabad High Court against the decree of the
\nTribunal obtained by the appellant against the Bank. That
\nappeal is said to be still pending. On the 24th September,
\n1953, the winding up of the Bank was finally ordered by the
\nCompany Judge and the Provisional Liquidator was appointed
\nas the Official Liquidator for the purpose.
\n607
\nIt is said that as against this order of a single Judge,
\nthere is a Bench appeal now pending in the High Court of
\nPunjab. At this stage the Banking Companies (Amendment)
\nOrdinance, 1953, (Ordinance No. 4 of 1953), was promulgated
\non the 24th October, 1953. This was repealed and
\nsubstituted, on the 30th December, 1953, by the Banking
\nCompanies (Amendment) Act, 1953 (LII of 1953). On the 17th
\nFebruary, 1954, the appellant filed a further application
\nbefore the Tribunal asking that the execution case filed be-
\nfore the Tribunal on the 6th January, 1953, which was stayed
\nin view of the letter of the Liquidator dated the 13th
\nMarch, 1953, should now be proceeded with having regard to
\nthe various reasons set out in that application. Curiously
\nenough two of the reasons alleged were (1) that section 171
\nof the Indian Companies Act was overridden and varied by
\nsection 45-C of the Banking Companies (Amendment) Ordinance
\n(Act), and (2) that the Tribunal Under the Displaced Persons
\n(Debts Adjustment) Act is not a Court and hence the stay
\nunder section 171 of the Indian Companies Act or under
\nsection 45-C of the Banking Companies Act has no application
\nto proceedings pending before the Tribunal. The application
\nof the 17th February, 1954, above-mentioned also prayed for
\nan order to send the case for execution to the Bombay High
\nCourt on the ground that the Bank had property within the
\nlocal limits of the jurisdiction of the said High Court
\nagainst which it was intended to seek execution. On this
\napplication, notice was issued to the Official Liquidator to
\nappear and show cause by the 24th April, 1954. The
\nLiquidator however did not appear. The Tribunal made an
\norder on the 24th April, 1954, transferring to the Bombay
\nHigh Court under section 39 of the Code of Civil Procedure
\nthe said decree for execution. On the 8th June, 1954, the
\nappellant filed an application for execution before the
\nBombay High Court (Application No. 123 of 1954) and asked
\nfor attachment and sale of the right, title and interest of
\nthe Bank in certain shares and securities belonging to the
\nBank and lying with the Central Bank of India Ltd., Bombay
\nsubject to the charge if
\n608
\nany on the said Bank. The attachment was ordered on the
\n18th June, 1954 and was affected on or about the 19th June,
\n1954.
\nAt this stage the Official Liquidator obtained an order on
\nthe 26th June, 1954, from the Punjab High Court purporting
\nto be one under section 45-C of the Banking Companies Act,
\ntransferring from the Court of the Banaras Tribunal, the
\nproceedings before it for execution of the decree in Case
\nNo. 1 of 1952, obtained. against the Bank by the appellant.
\nIt would appear that the Tribunal, on receipt of this order,
\ninformed the High Court by letter dated the 14th July, 1954,
\nthat the execution proceedings had already been transferred
\nto the High Court of Bombay and that no proceedings relating
\nto the execution case were at the time pending before it.
\nThereafter the Liquidator made an application dated the 28th
\nOctober, 1954, to the Punjab High Court for setting aside
\nthe order of the Bombay High Court dated the 18th June,
\n1954, directing attachment of the shares and securities be-
\nlonging to the Bank in the possession of the Central .Bank
\nof India Ltd. Bombay. The main grounds on which this
\napplication was made are-
\n(1)That the order of the Tribunal at Banaras in execution
\nCase No. 8 of 1953, transferring the decree for execution to
\nthe Bombay High Court more than six months after the passing
\nof the winding up order, without obtaining leave from the
\nPunjab High Court,was null and void.
\n(2)That the proceedings taken in execution against the
\nBank in the Bombay High Court were also null and void in
\nview of sections 171 and 232 of the Indian Companies Act.
\n(3)That in view of the Banking Companies (Amendment) Act,
\n1953, it is only the Punjab High Court that has exclusive
\njurisdiction to entertain and decide all claims between the
\nBank and the appellant and to deal with the execution
\nproceedings initiated by the appellant against the Bank.
\n(4)That the execution proceeding was in fact transferred by
\nthe Punjab High Court to itself by its order dated the 25th
\nJune, 1954, and all questions
\n609
\narising therefrom have to be dealt with and disposed of by
\nthe Punjab High Court itself.
\nThe appellant contested this application in the Punjab High
\nCourt on various grounds. The main contentions were-
\n(1)That the provisions of the Banking Companies Act could
\nnot override the provisions of the Displaced Persons (Debts
\nAdjustment) Act, 1951, and that the proceedings thereunder
\nare not affected by the Banking Companies Act.
\n(2)That in any case there was no valid order of transfer to
\nthe Punjab High Court of the execution proceeding relating
\nto the decree obtained by him against the Bank in the
\nBanaras Tribunal.
\nThese contentions were negatived by the Punjab High Court.
\nIt was held that the provisions of the Banking Companies Act
\nof 1953 had an overriding effect and that exclusive
\njurisdiction was vested thereby in the appropriate High
\nCourt notwithstanding anything in. the Displaced Persons
\n(Debts Adjustment) Act, 1951. It was also held that there
\nwas a valid order of transfer to the Punjab High Court, of
\nthe execution proceedings taken by the appellant in respect
\nof his decree. It was therefore held that the order of
\nattachment obtained by the appellant from the Bombay High
\nCourt was invalid. The said order was accordingly set
\naside. It is against this order that the present appeal has
\nbeen brought.
\nBoth the above contentions have been strenuously urged
\nbefore us on behalf of the appellant and equally strenuously
\nopposed on behalf of the Bank. The learned Attorney-General
\nfor the Bank placed reliance on section 232 of the Indian
\nCompanies Act at the forefront of his argument and pointed
\nout that under the said section no attachment could have
\nbeen made without leave of the Court when the Bank was in
\nthe process of being wound up by order of the Court. On the
\nother side it has been suggested that neither section 171
\nnor section 232 of the Indian Companies Act are applicable
\nto these proceedings in view of the Banking Companies Act as
\namended in 1953. This suggestion,proceeds on a
\nmisconception and ignores
\n610
\nsection 2 of the Banking Companies Act which specifically
\nprovides that the provisions of the Act shall be in addition
\nto and not in derogation of the Indian Companies Act as
\nexpressly provided. Hence no leave under section 232 of the
\nIndian Companies Act having been obtained, this might have
\nbeen enough to dispose of the case against the appellant if
\nthe order of attachment had been set aside by the Bombay
\nHigh Court itself, on the application of the Liquidator to
\nit. Since in this case the order to set aside attachment
\nwas passed by the Punjab High Court, the question has to be
\ngone into as to the jurisdiction of that Court to interfere
\nwith the order of the Bombay High Court or to declare it to
\nbe void. That jurisdiction can only be supported on the
\nview, that exclusive jurisdiction over the matter was vested
\nin the Punjab High Court, under the Banking Companies Act,
\nand that a valid order of transfer of the execution
\nproceeding to the said Court had been made in exercise of
\nthe powers under that Act. These questions have, therefore,
\nto be dealt with.
\nOn the facts above stated one matter is clear, viz., that
\nthe attempt of the appellant is to realise the amount due to
\nhim under the decree by getting at the assets of the Bank
\nwhich is under liquidation ignoring the purported adjustment
\nof the deposit made by the Bank towards its alleged dues
\nfrom him under his cash-credit account. His proceeding to
\nexecute the decree by attachment is in substance an attempt
\nto constitutes himself an independent preferential creditor.
\nSo far as the decree is concerned, we wish to say nothing
\nabout its validity or otherwise since the matter is pending
\nin appeal before the Allahabad High Court. What we are
\nconcerned with now is the proceeding in execution of that
\ndecree and the appellant’s attempt to get at the assets of
\nthe Bank in satisfaction thereof. There can be no doubt
\nthat,, apart from any argument available under the Displaced
\nPersons (Debts Adjustment) Act, 1951, which will be
\nconsidered presently, the matters which must necessarily
\narise in the course of such an execution proceeding are
\nmatters which would directly fall
\n611
\nwithin the scope of section 45-B of the Banking Companies
\nAct as amended in 1953 which runs as follows:
\n“The High Court shall, save as otherwise expressly provided
\nin section 45-C, have exclusive jurisdiction to entertain
\nand decide any claim made by or against a banking company
\nwhich is being wound up (including claims by or against any
\nof its branches in India) or any application made under
\nsection 153 of the Indian Companies Act, 1913 (VII of 1913)
\nby or in respect of a banking company or any question of
\npriorities or any other question whatsoever, whether of law
\nor fact, which may relate to or arise in the course of the
\nwinding up of a banking company, whether such claim or
\nquestion has arisen or arises or such application has been
\nmade or is made before or after the date of the order for
\nthe winding up of the banking company or before or after the
\ncommencement of the Banking Companies (Amendment) Act,
\n1953”.
\nThere has been some faint argument before us that the
\nquestions that arise in execution in this case and
\nparticularly the question relating to attachment which has
\nbeen effected by the Bombay High Court, are not questions
\nwhich fall’ within the scope of section 45-B. In our
\nopinion this contention is so obviously untenable, in view
\nof the very wide and comprehensive language of the section
\nthat, it requires no more than to be mentioned and rejected.
\nIf, therefore, the proceeding to execute the decree obtained
\nby the appellant in this case and the claims and matters
\nwhich must necessarily arise in the course of that execution
\nfall within the scope of section 45-B, the execution
\nproceeding in this case would prima facie be within the
\nexclusive jurisdiction of the High Court under section 45-B
\nsubject to the two questions that have been raised in the
\ncase which are (1) whether there is anything in the
\nDisplaced Persons (Debts Adjustment) Act, 1951, which
\noverrides this jurisdiction, and (2) whether in view of the
\nfact that the original execution application to the Tribunal
\nwas made before the Banking Companies (Amendment) Ordinance
\nand Act of 1953, came into force., there has been any valid
\norder under section 45-C of
\n612
\nthe Banking Companies Act by the Punjab High Court
\ntransferring the pending execution proceeding to it-
\nself.
\nSo far as the first of the above questions is concerned,
\nlearned counsel for the appellant relies on sections 3 and
\n28 of the Displaced Persons (Debts Adjustment) Act, 1951.
\nSection 28 declares that the civil court which passed the
\ndecree as a Tribunal shall be competent to execute it.
\nSection 3 runs as follows:
\n“3. Overriding effect of Act, rules and orders:Save as
\notherwise expressly provided in this Act, the pro-visions of
\nthis Act and of the rules and orders made thereunder shall
\nhave effect notwithstanding anything inconsistent therewith
\ncontained in any other law for the time being in force, or
\nin any decree or order of a court, or in any contract
\nbetween the
\nparties”.
\nOn the strength of these sections learned counsel for the
\nappellant argues that the jurisdiction, which the Tribunal
\nhas under section 28 for executing the decree must prevail
\nover the jurisdiction of the High Court in respect of this
\nmatter under section 45-B of the Banking Companies Act. On
\nthe other hand, the respondent relies on section 45-A of the
\nBanking Companies Act, which runs as follows:
\n“The provisions of this Part and the rules made thereunder
\nshall have effect notwithstanding anything inconsistent
\ntherewith contained in the Indian Companies Act, 1913 (VII
\nof 1913), or the Code of Civil Procedure, 1908 (Act V of
\n1908), or the Code of Criminal Procedure, 1898 (Act V of
\n1808), or any other law for the time being in force or any
\ninstrument having effect by virtue of any such law but the
\nprovisions of any such law or instrument in so far as the
\nsame are not varied by, or inconsistent with, the provisions
\nof this Part or rules made thereunder shall apply to all
\nproceedings under this Part”.
\nNow the question as to which of the provisions of these two
\nActs has got overriding effect in a given case, where a
\nparticular provision of each is equally applicable to the
\nmatter is not altogether free from difficulty. In the
\npresent case, prima facie by virtue
\n613
\nof section 28 of the Displaced Persons (Debts Adjustment)
\nAct the jurisdiction to execute the Tribunal’s decree is in
\nthe Tribunal. But it is equally clear that the jurisdiction
\nto decide any of the claims which must necessarily arise in
\nthe execution of the decree is vested in the High Court by
\nvirtue of section 45-B of the Banking Companies Act. Each
\nof the Acts has a specific provision, section 3 in the
\nDisplaced Persons (Debts Adjustment) Act and section 45-A in
\nthe Banking Companies Act, which clearly indicates that the
\nrelevant provision, if applicable, would have overriding
\neffect as against all other laws in this behalf. Each being
\na special Act, the ordinary principle that a special law
\noverrides a general law does not afford any clear solution
\nin this case. In support therefore of the overriding effect
\nof the Displaced Persons (Debts Adjustment) Act of 1951 as
\nagainst section 45-B of the Banking Companies Act, learned
\ncounsel for the appellant called in aid the rule that a
\nlater Act overrides an earlier one. (See Craies on Statute
\nLaw, pages 337 and 338). He urged that the Banking
\nCompanies (Amendment) Act of 1953 should be treated as part
\nof the 1949 Banking Companies Act and hence overridden by
\nthe Displaced Persons (Debts Adjustment) Act of 1951 and
\nrelied on the case in Shamarao V. Parulekar v. The District
\nMagistrate, Thana, Bombay(1) and on the passage therein at
\npage 687 which is as follows:
\n“The rule is that when a subsequent Act amends an earlier
\none in such a way as to incorporate itself, or a, part of
\nitself, into the earlier, then the earlier Act must
\nthereafter be read and construed (except where that would
\nlead to a repugnancy, inconsistency or absurdity) as if the
\naltered words had been written into the earlier Act with pen
\nand ink and the old words scored out so that thereafter
\nthere is no need to refer to the amending Act at all”.
\nNow there is no question about the correctness of this
\ndictum. But it appears to us that it has no application to
\nthis case. It is perfectly true as stated therein that
\nwhenever an amended Act has to be
\n(1) (1952) S.O.R. 683.
\n614
\napplied subsequent to the date of the amendment the various
\nunamended provisions of the Act have to be read along with
\nthe amended provisions as though they are part of it. This
\nis for the purpose of determining what the meaning of any
\nparticular provision of the Act as amended is, whether it is
\nin the unamended ‘part or in the amended part. But this is
\nnot the same thing as saying that the amendment itself must
\nbe taken to have been in existence as from the date of the
\nearlier Act. That would be imputing to the amendment
\nretrospective operation which could only be done if such
\nretrospective operation is given by the amending Act either
\nexpressly or by necessary implication. On. the facts of
\nthat case the question that was considered arose in the
\nfollowing circumstances. There was an order of detention
\nunder the Preventive Detention Act of 1950. That Act was
\ndue to expire on the 1st April, 1951. But there were
\nsubsequent amendments of the Act which extended the life of
\nthe Act up to 1st October, 1952. The amending Act provided
\ninter alia that detention orders which had been confirmed
\npreviously and which were in force immediately before the
\ncommencement of the amending Act “shall continue to remain
\nin force for so long as the principal act is in force”. The
\nquestion for consideration was whether this indicated the
\noriginal date of expire of the principal Act or the extended
\ndate of the principal Act. The Court had no difficulty in
\nholding that it obviously related to the latter,
\nnotwithstanding that the principal Act was defined as
\nmeaning “Act of 1950”. It was pointed out that the phrases
\n“principal Act” and “Act of 1950” have to be understood
\nafter the amendment as necessarily meaning the 1950 Act as
\namended, i.e., which was to expire on the 1st October, 1952.
\nIn the present case what we are concerned with is not the
\nmeaning of any particular phrase or provision of the Act
\nafter the amendment but the effect of the amending
\nprovisions in their relation to and effect on other
\nstatutory provisions outside the Act. For such a purpose
\nthe amendment cannot obviously be treated as having been
\npart of the original Act itself so as to
\n615
\nenable the doctrine to be called in aid that a later Act
\noverrides an earlier Act. On the other hand, if the rule as
\nto the later Act overriding an earlier Act is to be applied
\nto the present case, it is the Banking Companies (Amendment)
\nAct, 1953,. that must be treated as the later Act and held
\nto override the provisions of the earlier Displaced Persons
\n(Debts Adjustment) Act, 1951. It has been pointed out,
\nhowever, that, section 13 of the Displaced Persons (Debts
\nAdjustment) Act, uses the phrase “notwithstanding anything
\ninconsistent therewith in any other law for the time being
\nin force” and it was suggested that this phrase is wide
\nenough to relate even to a future Act if in operation when
\nthe overriding effect has to be determined. But it is to be
\nnoticed that section 45-A of the Banking Companies Act has
\nalso exactly the same phrase. What the connotation of the
\nphrase “‘for-the time being” is and which is to prevail when
\nthere are two provisions like the above each containing the
\nsame phrase, ate questions which are not free from-
\ndifficulty. It ;Is, therefore, desirable to determine the
\noverriding effect of one or the other of the relevant
\nprovisions in these two Acts, in a given case, on much
\nbroader considerations of the purpose and policy underlying
\nthe two Acts and the clear intendment conveyed by the
\nlanguage of the relevant provisions therein.
\nNow so far as the Banking Companies Act is concerned its
\npurpose is clearly, as stated in the heading of Part III-A,
\nfor speedy disposal of winding up proceedings. It is a
\npermanent statutory measure which is meant to impart speedy
\nstability to the financial credit structure in the country
\nin so far as it may be effected by banks under liquidation.
\nIt was pointed out in Dhirendra Chandra Pal v. Associated
\nBank of Tripura Ltd.(1) that the pre-existing law relating
\nto the winding up of a company. involved considerable delay
\nand expense. This was sought to be obviated so far as Banks
\nare concerned by vesting exclusive jurisdiction in the
\nappropriate High Court in respect of all matters arising in
\nrelation to or in the course of
\n(1) [1965] 1 S.C.R. 1098.
\n616
\nwinding up of the company and by investing the provisions of
\nthe Banking Companies Act with an overriding effect. This
\nresult was brought about first by the Banking Companies
\n(Amendment) Act, 1950 and later by the Banking Companies
\n(Amendment) Act, 1953. Sections 45-A and 45-B of Part III
\nbrought in by the 1950 Act vested exclusive jurisdiction in,
\nthe appropriate High Court to decide all claims by or
\nagainst a Banking Company relating to or arising in the
\ncourse of winding up. But sections 45-A and 45-B of the
\nPart III-A substituted by 1953 Act are far more
\ncomprehensive and vest not. merely exclusive jurisdiction
\nbut specifically provide for the overriding effect of other
\nprovisions also.
\nNow, the Displaced Persons (Debts Adjustment) Act is one of
\nthe statutory measures meant for relief and rehabilitation
\nof displaced persons. It is meant for a temporary situation
\nbrought about by unprecedented circumstances. It is
\npossible, therefore, to urge that the provisions of such a
\nmeasure are to be treated as being particularly special in
\ntheir nature and that they also serve an important national
\npurpose. It is by and large a measure for the rehabili-
\ntation of displaced debtors. Notwithstanding that both the
\nActs are important beneficial measures, each in its own way,
\nthere are certain relevant differences to be observed. -The
\nfirst main difference which is noticeable is that the
\nprovisions in the Displaced Persons (Debts Adjustment) Act
\nare in a large measure enabling and not exclusive. There is
\nno provision therein which compels either a displaced debtor
\nor a displaced creditor to go to the Tribunal, if he is
\nsatisfied with the reliefs which an ordinary civil court can
\ngive him in the normal course. It is only if he desires to
\navail himself of any of the special facilities which the Act
\ngives to a displaced debtor or to a displaced creditor and
\nmakes an application in that behalf under sections 3, or
\n5(2), or 13, that the Tribunal’s jurisdiction comes into
\noperation. At this point it is necessary to notice the
\nfurther difference that exists in the Displaced Persons
\n(Debts Adjustment) Act between applications by displaced
\ndebtors and ap-
\n617
\nplications by displaced creditors against persons who are
\nnot displaced persons. So far as the applications by
\ndisplaced debtors are concerned, section 15 in terms
\nprovides for certain consequences arising, when the
\napplication is made to the Tribunal by a displaced debtor
\nunder section 3 or section 5(2), i.e., stay of all pending
\nproceedings, the cessation of effect of any interim orders
\nor attachments, etc. and a bar to the institution of fresh
\nproceedings and so forth. But the terms of section 13
\nrelating to the entertainment of an execution proceeding by
\nthe said Tribunal on a decree so obtained, do not appear to
\nbring about even the kind of consequences which section 15
\ncontemplates as regards applications by displaced debtors.
\nSection 13 is, in terms, only an enabling section and
\nsection 28 merely says that “it shall be competent for the
\ncivil court to execute the decree passed by it as a
\nTribunal”. They are not couched in terms vesting exclusive
\njurisdiction in the Tribunal. Whatever, therefore, may be
\nthe inter se, position, in a given case, between the
\nprovisions of the Banking Companies Act and the provisions
\nof the Displaced Persons (Debts Adjustment) Act, in so far
\nas such provisions relate to displaced debtors, we are
\nunable to find that the jurisdiction so clearly and
\ndefinitely vested in the High Court by the very specific and
\ncomprehensive wording of section 45-B of the Banking Com-
\npanies Act with reference to the matters in question, can be
\nsaid to be overridden or displaced by anything in the
\nDisplaced Persons (Debts Adjustment) Act, 1951, in so far as
\nthey relate to displaced creditors.
\nIt is also desirable to notice that so far as a claim of a
\ndisplaced creditor against a non-displaced debtor is
\nconcerned the main facilities that seem to be available are
\n(1) the claim can be pursued within one year after the
\ncommencement of the Act (presumably even -though it may’
\nhave been time barred), (2) a decree can be obtained on a
\nmere application, i.e., without having to’ incur the
\nnecessary expenses byway of court-fee which would be payable
\nif he had to file a suit, (3) the creditor has the facility
\nof getting his claim adjudicated upon by a Tribunal which
\nhas
\n80
\n618
\njurisdiction over the place where he resides, i.e., a place
\nmore convenient ‘to him than if be had to file a suit under
\nthe ordinary law in which case he would have to file a suit
\nat the place where the defendant resides or part of the
\ncause of action arises. There may also be a few other minor
\nfacilities. But what is necessary to notice is that the
\noverriding provision of the Banking Companies Act, so far as
\na displaced creditor is concerned, is substantially only as
\nregards jurisdiction. Section 45-A thereof, while providing
\nthat the provisions of Part III-A and the rules made there-
\nunder shall have effect notwithstanding anything in-
\nconsistent therewith in any other law for the time being in
\nforce, specifically provides that “the provisions of any
\nsuch law in so far as the same are not varied by or
\ninconsistent with, the provisions of that part or rules made
\nthereunder, shall apply to all proceedings under that Part”.
\nTherefore, in the present case the overriding effect of
\nsection 45-B of the Banking Companies Act deprives him only
\nof the facility of pursuing his execution in the
\njurisdiction of the Tribunal. But there is no reason why he
\nshould not get the benefit of other provisions, if any,
\nwhich may give him an advantage and are not inconsistent
\nwith any of the other specific provisions of the Banking
\nCompanies Act. Having regard to all the above con-
\nsiderations and the wide and comprehensive language of
\nsections 45-A and 45-B of the Banking Companies Act, we are
\nclear that a proceeding to execute the decree obtained by
\nthe appellant from the Tribunal against the Bank in Case No.
\nI of 1952 and all other incidental matters arising therefrom
\nsuch as attachment and so forth are matters within the
\nexclusive jurisdiction of the Punjab High Court subject to
\nthe provisions of section 45-C of the Banking Companies Act
\nas regards pending matters. This leads us to the question
\nwhether in terms of section 45-C there has been a valid
\ntransfer of the execution proceeding to the Punjab High
\nCourt.
\nBefore dealing with this question it is necessary to notice
\nthe argument that section 45-C of the Banking Companies Act
\nhas no application -at all to a pro-
\n619
\nceeding pending before the Tribunal. The argument is that
\nsection 45-C applies only to a proceeding pending in any
\nother Court immediately before the commencement of the
\nBanking Companies (Amendment) Act. It is urged that the
\nTribunal under the Displaced Persons (Debts Adjustment) Act
\nis not a Court. In support thereof the judgment of one of
\nthe learned Judges in Parkash Textile Mills Ltd. v. Messrs
\nMuni Lal Chuni Lal(1) has been cited to show that the
\nTribunal constituted under this Act is not a Court. The
\nquestion that arose in that case was a different one, viz.,
\nas to whether the Tribunal had the exclusive jurisdiction to
\ndetermine for itself the preliminary jurisdiction on facts
\nand it is for that purpose the learned Judge attempted to
\nmake out that a Tribunal was a body with a limited
\njurisdiction, which limits were open to be determined by a
\nregular court when challenged. It is unnecessary for us to
\nconsider whether the view taken by the learned Judge was
\ncorrect. No such question arises in this case and we are
\nquite clear that the Tribunal which is to exercise the
\njurisdiction for executing the decree in question is “a
\nCourt” within the scope of section 45-C of the Banking
\nCompanies Act. Section 28 of the Displaced Persons (Debts
\nAdjustment) Act itself is reasonably clear on that point.
\nThat section runs as follows:
\n“It shall be competent for the civil court which has been
\nspecified as the Tribunal for the purposes of this Act to
\nexecute any decree or order passed by it as the Tribunal in
\nthe same manner as it could have done if it were a decree or
\norder passed by it as a civil court”.
\nIt is quite clear on the wording of this section that it is
\na civil court when it executes the decree, whatever may be
\nits status when it passed the decree as a Tribunal. There
\nis, therefore, no substance in this argument.
\nNow coming to the question whether there has been a valid
\ntransfer of the execution proceedings to the Punjab High
\nCourt, there can be no doubt that the
\n(1) [1955] 57 P.L. R. 107.
\n620
\nexecution proceeding filed by the appellant before the
\nTribunal on the 6th January,’1953, continued to remain
\npending by the date when the Banking Companies (Amendment)
\nAct, 1953, came into operation. This appears from the
\nsubsequent applications dated the 16th March, 1953, and the
\n17th February, 1954, which always relied on the earlier
\napplication of the 6th January, 1953, as the main pending
\napplication. This application was, therefore, a pending
\napplication for the purposes of section 45-C of the Banking
\nCompanies Act. The jurisdiction of the Punjab High Court
\nwith reference to this execution proceeding must depend upon
\nwhether or not there was a valid order of transfer of this
\nproceeding to itself under section 45-C. This section
\ncontemplates, in respect of pending proceedings that (a) the
\nOfficial Liquidator is to make a report to the High Court
\nconcerned within the time specified in sub-section (2)
\nthereof, (b) the High Court is to consider which out of
\nthese pending proceedings it should transfer to itself, and
\n(c) the High Court should pass orders accordingly. It
\nfurther provides by sub-section (4) thereof that as regards
\nsuch of the pending proceedings in respect of which no such
\norder of transfer has been made the said proceeding shall
\ncontinue in the Court in which it is pending. It is with
\nreference to these provisions that on the 23rd November,
\n1953, the Official Liquidator appears to have submitted a
\nreport to the Punjab High Court, requesting that certain
\nproceedings mentioned in lists A and B attached to the said
\nreport should be transferred to the High Court under section
\n45-C(3). List A pertains to suits and List B to
\napplications under the Displaced Persons ‘Debts Adjustment)
\nAct, 1951. It is pointed out that list B which shows an
\napplication before the Tribunal under section 19 of the
\nDisplaced Persons (Debts Adjustment) Act, does not show the
\nexecution application under section 28 of that Act then
\npending in the Banaras Tribunal and with which we are
\nconcerned. It is strenuously urged that this shows that
\nthere was no application for transfer of this proceeding to
\nthe Punjab High Court and that, therefore, there could
\n621
\nhave been no transfer thereof and that accordingly by virtue
\nof section 45-C(4) of the Banking Companies Act the
\njurisdiction in respect of the execution proceeding
\ncontinued to be with the Tribunal. It is urged that since
\nsub-section (4) of section 45-C enjoins that such proceeding
\n“shall be continued” in the Court in which the proceeding
\nwas pending, there can be no question of any transfer
\nthereafter. It is pointed out that the view of the High
\nCourt that there has been a valid transfer to itself is
\nbased on an order passed on an alleged supplementary report
\nby the Liquidator on the 25th June, 1954, which is beyond
\nthe three months’ time provided in section 45-C (2) and that
\nsuch an. order of transfer is invalid. It is also urged
\nthat the transfer so made was without notice to the
\nappellant.
\nThat there was in fact an order of transfer made by the
\nPunjab High Court specifically of this execution proceeding
\nwith which we are concerned admits of no doubt as a fact.
\nThis is also admitted by the appellant in his application
\nfor special leave. The order itself is not before us nor
\nare the exact circumstances under which this order came to
\nbe made, clearly on the record. So far as one can gather
\nfrom the papers before us the position seems to be this.
\nWhen the appellant filed his application to the Tribunal on
\nthe 17th February, 1954 (by which he asked that its order
\ndated the 20th March, 1953, staying execution proceedings
\nshould be vacated for reasons shown therein) notice to show
\ncause against it and for appearance therefor on the 24th
\nApril, 1954, was sent to the Official Liquidator by the
\nTribunal. The Official Liquidator not having appeared on
\nthat date, the Tribunal, as already stated, passed the order
\nas prayed for on the 24th April 1954, transferring the
\nexecution to the Bombay High Court. It may be mentioned at
\nthis stage that an argument has been advanced that the
\nLiquidator, not having appeared on notice, can no longer
\nchallenge the validity of the continuance of the execution
\nproceeding by the Tribunal and of the subsequent attachment
\nby the Bombay High Court. The question, however, is one
\n622
\nof jurisdiction depending on the validity of transfer made
\nby the High Court under statutory power. The argument is
\nwithout substance. To resume the narrative, the Official
\nLiquidator on receiving notice, addressed a letter dated the
\n19th March, 1954, to the Company Judge of the Punjab High
\nCourt mentioning the fact that he, received a notice from
\nthe Banaras Tribunal to appear and show cause on the 24th
\nApril, 1954. He mentioned therein his doubt as to the
\njurisdiction of the Tribupal to entertain the application
\nand requested that in order to avoid inconvenience and
\nexpenditure an immediate transfer of the execution case
\ntogether with the appellant’s application to the Tribunal
\nfor vacating the stay order should be made by the High Court
\nin exercise of the powers conferred on it by section 45-C of
\nthe Act. On this the learned Judge appears to have passed
\nan order dated the 22nd March, 1954, issuing notice to the
\nappellant for appearance on the 2nd April, 1954. This
\nappears to have been adjourned from time to time and it
\nwould appear that on the 25th June, 1954, to which date the
\nmatter stood adjourned, the Liquidator addressed another
\nletter to the Company Judge, which is referred to in the
\nrecord as the supplementary report of the Liquidator.
\nTherein he only narrated the entire history of the suit and
\nof the execution proceeding and the circumstances which
\nrendered it necessary that an order of transfer should be
\nmade immediately. Probably this was meant for opposing any
\nfurther adjournment. It appears at any rate that it was on
\nthis date that the order of transfer was passed. All the
\nfacts stated above can be gathered from the two letters of
\nthe Liquidator dated the 19th March, 1954, and the 25th
\nJune, 1954, and a further note of the Liquidator put up to
\nthe Company Judge with reference to the letter dated the
\n14th July, 1954, received from the Tribunal which is all the
\nrelevant material included in the paper book before us. The
\nactual date of the note does not appear from the record.
\nUnfortunately neither the original order of the Judge made
\non the report of the Liquidator dated the 23rd November,
\n1953, nor the order of
\n623
\ntransfer relating to this particular case, which appears to
\nhave been made on the 25th June, 1954, on the letter of the
\nLiquidator dated the 19th March, 1954, are before us. We do
\nnot know the exact terms in which those orders were made and
\nthe reason why no specific order of transfer was made on the
\nfirst report and why an additional order of transfer was
\nmade-as appears-so late as on the 25th June, 1954. In any
\ncase the argument on behalf of the appellant on this part of
\nthe case seems to be based on a misapprehension of the
\nfacts. If, as appears, the order of the 25th June, 1954,
\nwas made with reference to the letter of the Liquidator
\ndated the 19th March, 1954, -a fact which appears ears to be
\nadmitted by the appellant in para 16 of his application for
\nleave to appeal to this Court-and what is called
\nsupplementary report dated the 25th June, 1954, was nothing
\nmore than bringing additional facts to the notice of the
\nCourt by way of the history of the execution proceeding,
\nthere appears to be no foundation in fact for the contention
\nthat the order was made on a report filed beyond three
\nmonths provided under section 45-C(2) of the Banking
\nCompanies Act. Sub-section (2) of section 45-C provides
\nthat “the Official Liquidator shall, within three months
\nfrom the date of the winding up order or the commencement of
\nthe Banking Companies (Amendment) Act, 1953, whichever is
\nlater, or such further time as the High Court may allow,
\nsubmit to the High Court a report containing a list of all
\nsuch pending proceedings together with particulars thereof”.
\nThe letter of the Official Liquidator dated the 19th March,
\n1954, is within three months of the commencement of the
\nBanking Companies (Amendment) Act, 1953, which came into
\nforce on the 30th December, 1953, and there is nothing in
\nsubsection (2) of section 45-C that two or more successive
\nreports may not be made within the prescribed period of
\nthree months. It appears also from the papers above
\nreferred to that notice was issued to the appellant with
\nreference to this letter of the 19th March, 1954, of the
\nLiquidator to transfer the execution application to itself.
\nIt appears to us, therefore,
\n624
\nfrom such record as is before us, that the contention of the
\nappellant raising objection to the validity of the order of
\ntransfer is untenable on the facts.’ Nor, are we satisfied
\nthat even if the facts as to how the order of transfer dated
\nthe 25th June, 1954, came to be made are shown to be
\notherwise than above stated, there is any reason to think
\nthat sections 45-C(2), (3) and (4) are to be construed so as
\nto make the power of the Court to transfer dependent on the
\nfiling of a report by the Liquidator strictly within three
\nmonths. The various sub-sections, taken together seem to
\nimply the contrary. Section 45-C(1) definitely imposes a
\nbar on any pending matter in any other court being proceeded
\nwith except in the manner provided therein. The
\njurisdiction of that other Court to proceed with a pending
\nproceeding is made to depend on the fact that its pendency
\nis brought to the notice of the appropriate High Court and
\nits decision, express or implied, to leave it out without
\ntransferring it to itself. Having regard to the scheme and
\npolicy of sections 45-B and 45-C of the Banking Companies
\nAct, it appears more reasonable to think that in respect of
\na pending matter which was not in fact brought to the notice
\nof the Court by the Liquidator within the three months,
\nthere is nothing to prevent the Court exercising its power
\nof transfer at such time when, it is brought to the notice
\nof the Court. It is, however, unnecessary to decide that
\npoint finally in this case since, to gay the least, all the
\nfacts and the requisite records have not been properly
\nplaced before us. We have been asked to send for all the
\nrelevant records in order to ascertain the facts correctly
\nor to give an opportunity for the purpose. We do not think
\nit right to do so in the circumstances of this case. It is
\nnecessary to point out, as admitted by the appellant in his
\napplication for special leave that there has been an
\napplication to this Court dated the 16th October, 1954, for
\nthe grant of special leave specifically as against the order
\nof transfer of the Punjab High Court made on the 25th June,
\n1954, but that application ‘Was rejected. It
\n625
\nhas been suggested that while so rejecting, this Court left
\nthe matter open. There is nothing to substantiate it.
\nTherefore, an argument as to the invalidity of the order of
\ntransfer cannot be entertained at this stage.
\nFor all the above reasons we are satisfied that the view
\ntaken by the High Court that it bad exclusive jurisdiction
\nin respect of the present matter and that there was a valid
\ntransfer to itself by its order dated the 25th June, 1954,
\nis correct.
\nIn the proceedings before the High Court a good deal has
\nbeen made as to the alleged suppression of .material facts
\nby the appellant from the Bombay High Court, in obtaining
\nthe impugned order of attachment from that Court and the
\nlearned Judge’s order also indicates that be was to some
\nextent influenced thereby. It appears to us that the
\nalleged suppression has no bearing on the questions that
\narose for decision before the learned Judge, on this appli-
\ncation. The learned Attorney-General frankly conceded the
\nsame. We have been told that there has been some
\napplication for contempt in the Court on the basis of the
\nalleged suppression. We do not, therefore, wish to say
\nanything relating to that matter which may have any bearing
\non the result of those proceedings.
\nIn the result this appeal is dismissed with costs.
\nAppeal dismissed.
\n626<\/p>\n","protected":false},"excerpt":{"rendered":"
PETITIONER: SHRI RAM NARAIN Vs. RESPONDENT: THE SIMLA BANKING & INDUSTRIAL CO.LIMITED. DATE OF JUDGMENT: 09\/05\/1956 BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. BOSE, VIVIAN SINHA, BHUVNESHWAR P. CITATION: 1956 AIR 614 1956 SCR 603 ACT: Banking Companies Act, 1949 (X of 1949) as amended by Act LII of 1953, ss. 45-A, 45-B, 45-C-Displaced Persons (Debts … Read more<\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"fifu_image_url":"","fifu_image_alt":""},"categories":[4928],"tags":[],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29754"}],"collection":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/comments?post=29754"}],"version-history":[{"count":1,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29754\/revisions"}],"predecessor-version":[{"id":115544,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29754\/revisions\/115544"}],"wp:attachment":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/media?parent=29754"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/categories?post=29754"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/tags?post=29754"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}