Skip to content


In Re: Varthakavardhini Bank Ltd. (In Liquidation) - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Case NumberCivil Petition No. 67 of 1954
Judge
Reported in[1964]34CompCas163(Kar)
ActsCompanies Act, 1956 - Sections 543
AppellantIn Re: Varthakavardhini Bank Ltd. (In Liquidation)
Excerpt:
- section 88: [s.r. bannurmath & a.n.venugopala gowda,jj] grant of inter-state permit - renewal of counter-signature of permits - writ petition challenging same held, writ petition is not liable to be dismissed inasmuch as counter signature was granted in the absence of an agreement between two states. mere acquiescence of grant or renewal of permits earlier, cannot create a right in favour of appellants nor constitute an estoppel against revision-petitioner from enforcing their rights and questioning the renewals of permits. grant of renewal is a fresh grant, though it breathes life into previous grant, as per existing provisions of act. indian evidence act, 1872 section 115; [s.r.bannurmath & a.n.venugopala gowda,jj] estoppel - grant of inter-state permit - renewal of..........being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded. (2) notwithstanding anything to the contrary contained in the indian limitation act, 1908 (ix of 1908), or section 543 of the companies act, 1956 (1 of 1956), or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director of a banking company which is being wound up or for the enforcement by the banking company against any of its directors of any claim based on a contract, express or implied; and in respect of all other claims by the.....
Judgment:

1. In the list of debtors filed by the liquidator on June 30, 1954, the two debts of which repayment is claimed from the aforesaid R. Chikkaveeranna are items 45 and 46, viz. :

'45. Hand-loan dated December 31, 1936, by Yelandur Shivachar late Katte Malelavadi Rachappa's Rs. 5,500.

46. do. dated June 2, 1937, for Rs. 250.'

The said Chikkaveeranna died on August 22, 1956. Hence the liquidator took out notice to his widow, Subbamma. The said Subbamma in her affidavit of objections stated that she had no knowledge of the loans taken by her deceased husband and put the liquidator to strict proof. She also objected to the claim as barred by time, firstly, because she is sought to be impleaded as a legal representative nearly eight years after the death of her husband without any application for setting aside the abatement or to condone the delay in impleading her, and, secondly, because the original cause of action against her husband was barred by limitation and there is nothing in the Banking Companies Act or the Companies Act which would revive the cause of action against her husband or against her. There was another objection to the effect that the proposed action by the liquidator under sections 45D and 45-O of the Banking Companies Act was not maintainable in view of section 14 of the amending Act of 1956; this objection, however, is not pressed by her learned advocate, Mr. Bopanna, for the reason that there is nothing in the said section 14 to support or substantiate the objection.

2. Subbamma has not led any evidence. The liquidator, Mr. S. Chinnaswami Setty, has given evidence speaking to the entries in the books of account and other books of the company which are relevant to his claim.

3. Chikkaveeranna was first elected a director of the company for the year 1937 at a general meeting of the shareholders held on December 31, 1936, and continued to be a director till the winding up petition was filed in the District Court of Mysore on November 8, 1944. This fact is proved by the liquidator by producing the proceedings books of the company in which relevant resolutions electing him as a director are recorded. Exhibit P-4(a) is the record of proceedings of the general body meeting held on December 31, 1936, at pages 126, 127 and 128 of the proceedings book, exhibit P-4 at which Chikkaveeranna was elected a director for the year 1937; exhibit P-4(a) (1) is the relevant resolution separately marked. Exhibit P-4(b) (1) which appears in the same book is the resolution which re-elected all the directors for the year 1938 adopted in the general body meeting held on December 31, 1937. Exhibit P-4(c) (1) is a resolution relating to the election of directors including Chikkaveeranna for the year 1939, adopted at the meeting held on December 29, 1938. Exhibit P-4(d) (1), exhibit P-4(e) (1) and exhibit P-4(f) (1) are similar resolutions relating to the years 1940, 1941 and 1942. Exhibit P-5 is another book of proceedings of general body meetings in continuation of exhibit P-4. Exhibit P-5(a) (1) and exhibit P-5(b) (1) are similar resolutions relating to the years 1943 and 1944.

4. It is proved therefore that Chikkaveeranna was a director of the company from 1937 until the time the winding-up petition was filed.

5. The loans which are called 'Moobadla' loans taken by Chikkaveeranna are proved by the production of loan application books marked exhibits P-1 and P-2 and a voucher book marked exhibit P-3. Exhibit P-1(a) is the application by Chikkaveeranna for the first time of the loans dated December 31, 1936, for Rs. 5,500, and Exhibit P-2(a) is the application for the loan of Rs. 250 dated June 2, 1937. Exhibit P-3(a) is an entry in the voucher book for payment of the amount of the first loan, and exhibit P-3(a) (1) is Chikkaveeranna's signature in token of having received the amount. Exhibit P-3(b) is a similar entry relating to the second loan and exhibit P-3(b) (1) is the signature of Chikkaveeranna for having received the amount of Rs. 250.

6. Under section 45F (1) of the Banking Companies Act, the books of account are admissible in evidence in these proceedings, and the entries therein are proved by the production of the books. Under sub-section (2) of the same section, these entries are, prima facie, evidence against directors of the truth of the matters purporting to be recorded therein. Subbamma, as already stated, has not led any evidence to rebut the presumption in favour of the truth of these entries; the only thing Mr. Bopanna has done on her behalf is to suggest to the liquidator in his cross-examination that he has not looked into the cash books of the company with a view to see whether the company had sufficient cash to make the alleged payments to Chikkaveeranna. He did not mark any entry showing any payments by Chikkaveeranna either.

7. In the circumstances, it has to be held that the liquidator has proved that Chikkaveeranna had borrowed these two sums of Rs. 5,500 and Rs. 250 from the company and that he has not made any repayments in respect of either of them.

8. To Subbamma's objection regarding the abatement of the claim and delay in impleading her as a legal representative, the answer on behalf of the liquidator is that no such objection is available in view of the provisions of section 45D of the Banking Companies Act read with the Fourth Schedule to the Act. Sub-section (2) of that section states :

'Subject to any rules that may be made under section 52, the official liquidator shall, within six months from the date of the winding up order or the commencement of the Banking Companies (Amendment) Act, 1953, whichever is later, from time to time, file to the High Court lists of debtors containing such particulars as are specified in the Fourth Schedule :

Provided that such lists may, with the leave of the High Court, be filed after the expiry of the said period of six months.'

9. The Fourth Schedule contains the following provision in its fifth paragraph :

'If the original debtor dies either before or after he has been included in any such list, but before such list is settled, there shall be substituted in his place the names and addresses of his legal representatives as far as the official liquidator is able to ascertain.'

The settlement of the list by the High Court as indicated in sub-section (3) of section 45D actually means the making of an order directing payment by the debtor or debtors named in the list filed by the liquidator after making an enquiry in the manner provided by the rules made under section 45U. The same section contains a proviso empowering the High Court to settle the list in part as against such of the persons whose debts have been settled, i.e., proved after enquiry.

10. The above provisions apply or operate notwithstanding anything to the contrary contained in any law for the time being in force according to the express provision of sub-section (1) of section 45D. Further, according to section 45A, the first section in Part 111-A of the Banking Companies Act, the provisions of that Part and the rules made thereunder are to have effect notwithstanding anything inconsistent therewith contained in the Companies Act, the Code of Civil Procedure, the Code of Criminal Procedure or any other law for the time being in force.

11. Hence the provisions of the Code of Civil Procedure regarding abatement of suits or the necessity of impleading legal representatives within a prescribed time in order to avoid abatement or of making an application to set aside an abatement, if one occurs, do not apply because they will be inconsistent with the provision in the fifth paragraph of the Fourth Schedule to the Banking Companies Act, which permits the substitution of the names and addresses of legal representatives in the place of a deceased debtor named in the list at any time before the said list is settled by the High Court.

12. The objection of Subbamma in this regard has, therefore, to be and is hereby overruled.

13. The objection as to limitation is sought to be met on behalf of the liquidator on two alternative grounds. The first or the principal argument is that the special provisions of section 45-O of the Banking Companies Act, particularly those of sub-section (2) thereof specially applicable to the claims against directors, is a complete answer. Alternatively, it is stated that though the two claims made against Chikkaveeranna are of the years 1936 and 1937, the alleged bar of limitation against their enforcement is removed by the fact that Chikkaveeranna as director has signed balance-sheets for the years ended June 30, 1939, June 30, 1940, June 30, 1943 and June 30, 1944, which are found recorded in the books of the company marked exhibits P-6 and P-7 and marked separately as exhibit P-6(a) and Exhibit P-7(a), (b) and (c) respectively. It is argued that among the assets of the company displayed in the balance-sheets there is an item called 'debts due by directors' and in the aggregate sums mentioned under that heading are included the loans due from Chikkaveeranna and that, therefore, by affixing his signature to these balance-sheets containing the said item of asset, Chikkaveeranna must be held to have acknowledged his liability to the company in respect of these two loans.

14. Section 45-O of the Banking Companies Act reads as follows :

'45-O. (1) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (IX of 1908), or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded.

(2) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (IX of 1908), or section 543 of the Companies Act, 1956 (1 of 1956), or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director of a banking company which is being wound up or for the enforcement by the banking company against any of its directors of any claim based on a contract, express or implied; and in respect of all other claims by the banking company against its directors, the period of limitation shall be twelve years from the date of the accrual of such claims or five years from the date of the first appointment of the liquidator, whichever is longer.

(3) The provisions of this section, in so far as the relate to banking companies being wound up, shall also apply to a banking company in respect of which a petition for the winding up has been presented before the commencement of the Banking Companies (Amendment) Act, 1953.'

15. The overriding effect of this section over all other laws is apparent not merely from the general provisions of section 45A at the commencement of, Part IIIA but also from the language of the said section itself. This Part was substituted for the Part of the same number by the Amending Act 52, of 1953. Sub-section (3) of section 45-O expressly states that the provisions of that section shall apply to a banking company which is being wound up in respect of which a petition for winding up has been presented before the commencement of the Amending Act of 1953. Hence, it applies to winding up proceedings in respect of a banking company which were pending at the time the 1953 Act came into force, having commenced on a winding up petition presented before the commencement of the Act. The present winding up proceedings come within that description.

16. In the order pronounced on 8th November, 1963, in Misfeasance Application I. A. No. 1 in C. P. (B) 28 of 1956 (In re Supreme Bank of India Ltd. (In Liquidation) : Official Liquidator v. S. G. Pant Balekundri ([1964] 34 Comp. Cas. 34.) I have had occasion to examine the effect of this section so far as the claims by a banking company which is being wound up against its directors are concerned. I have therein pointed out that sub-section (2) deals specially with. claims against directors dividing them into three categories, viz. :

1. claims for recovery of calls on shares,

2. claims based on contracts, express or implied, and

3. all other claims.

I have also pointed out therein that the third category is a residuary category which takes in every type of claim other than the claims falling under the first category. In other words, it means that the claims mentioned in sub-section (2) are exhaustive of all types of claims which a banking company in winding up has or may have against its directors. The rules regarding limitation prescribed in the said sub-section govern those claims notwithstanding anything to the contrary contained either in the Indian Limitation Act or in any other law for the time being in force.

17. The consequence of this view is that, so far as the rules of limitation governing the claims by a banking company which is being wound up against its directors are concerned, sub-section (2) of section 45-O constitutes a complete and self-contained code exclusively applicable to those claims and nothing contrary to those provisions contained in any other law can apply.

18. That the claims in respect of the loans taken from the company are claims which are based on a contract, express or implied, admit of no doubt. That Chikkaveeranna was a director also admits of no doubt. That the present claim against him is by a banking company in winding up, of which he was a director, is obvious.

19. It follows therefore that the liquidator, on the strength of section 45-O (2), can say that there shall be no period of limitation for the enforcement of this claim against Chikkaveeranna.

20. The only argument against him pressed by Mr. Bopanna on behalf of Subbamma is that although section 45-O of the Banking Companies Act may be said to have retrospective operation, especially in view of sub-section (3) thereof, the general principle of law governing the interpretation of statutory provisions purporting to have retrospective effect is that, in the absence of an express provision or clear intendment of the statute, claims which are dead or barred should not be taken to have been revived. There can be no quarrel with this proposition which is well established. But the question is whether, as contended for by Mr. Tarakaram on behalf of the liquidator, it is not possible, in view of the language of section 45-O of the Banking Companies Act, to say that there is such express provision or necessary intendment.

21. If regard be had to the general overriding effect given to Part IIIA of the Banking Companies Act by section 45A and also to the language of section 45-O (2), it appears to me that the contention of Mr. Bopanna is unavailable. If the two conditions regarding the claim are satisfied, viz., that the claim is made by a banking company in winding up and that the said claim is made against its director, it is governed exclusively by the provisions of sub-section (2) of section 45-O and, consequently, there is no limitation of time for its enforcement notwithstanding anything to the contrary contained in any other law. It may be noted that the said sub-section prescribes a period of limitation only in respect of claims falling under the third category and expressly declares that there shall be no period of limitation in respect of the first two categories of claims. So far as these claims are concerned, the position is not one of amending or extending or otherwise prescribing conditions for the application of a period of limitation prescribed by any other law but one of totally repealing the provision of every other law which may prescribe the period of limitation for their enforcement. If such is the effect, the necessary intendment of the statute is that even if the claim is barred by the expiry of a period of limitation prescribed for its enforcement by any other law, that bar is removed by section 45-O (2).

22. Mr. Bopanna cited a decision of the Calcutta High Court in Sarkar Dutt Roy & Co. v. Shree Bank Ltd. ([1960] 30 Comp. Cas. 416.), in support of the proposition that section 45-O does not have the effect of reviving a cause of action which is barred or a claim which is dead. It should, however, be noted that the said decision dealt with the first sub-section of section 45-O and not with sub-section (2). That sub-section, as already pointed out in my order in In re Supreme Bank of India Ltd. (In Liquidation) : Official Liquidator v. S. G. Balekundri ([1964] 34 Comp. Cas. 34.) does not repeal or do away with the period of limitation prescribed for the claim by the Limitation Act or any other law but merely provides for the exclusion from the period so prescribed of the period commencing with the presentation of the winding up petition. I have also pointed out therein that the exclusion of the period mentioned in section 45-O (1) can arise only if the period prescribed under the other law from which the exclusion is to be made has already commenced to run. By extending the same reasoning, it should now be pointed out that the exclusion of the period mentioned in section 45-O (1) is not possible if the period from which it has to be excluded has already expired. The net result is that claims which are governed by section 45-O (1) and in respect of which the provisions thereof can operate must be claims which are alive on the date of the presentation of the winding up petition. That also is the effect of the opinion of their Lordships of the Calcutta High Court in the case relied upon by Mr. Bopanna. For the reasons already explained by me, all claims against directors by a banking company which is being wound up are dealt with in sub-section (2) of section 45-O which means that they are not governed by the first sub-section. Hence the principle stated in Sarkar Dutt Roy & Co. v. Shree Bank Ltd. ([1960] 30 Comp. Cas. 416) cannot be availed of by the directors of a banking company which is being wound up.

23. In this view, it is unnecessary for me to examine the alternative argument of Mr. Tarakaram that by affixing his signature to the balance-sheets, Chikkaveeranna must be held to have acknowledged his liability to the company and kept the debt alive. I express no opinion thereon.

24. I hold, therefore, that the claim against Chikkaveeranna in respect of the two loans, Serial Nos. 45 and 46 in the list of debtors, is alive and enforceable but only against his assets, if any, in the possession of the widow, Subbamma.

25. There will, therefore, issue a certificate in Form No. 3 annexed to the Rules of this court made under section 45U of the Banking Companies Act directing Subbamma to pay out of the assets in her hands belonging to the deceased, Chikkaveeranna, the sums of Rs. 5,500 and Rs. 250 with interest thereon at the contract rate of six per cent. per annum from their respective dates, viz., December 31, 1936, and June 2, 1937.

26. There will be no order as to costs against her.


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