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In Re: Popular Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberB.C.C. Nos. 48 to 50, 52, 65, 79 and 98 of 1957 in B.C.P. 8 of 1956
Judge
Reported inAIR1959Ker11
ActsCourt-fees Act, 1870 - Schedule - Article 1; Companies Act, 1956 - Sections 529; Provincial Insolvency Act, 1920 - Sections 46; Code of Civil Procedure (CPC) 1908 - Order 8, Rule 6; Kerala Insolvency Act - Sections 47; Travaneore-Cochin Court-fees Act, 1125
AppellantIn Re: Popular Bank Ltd.
Appellant AdvocateCourt Liquidator
Respondent Advocate S. Bhoothalinga Iyer, Adv. in Nos. 48 & 57,; K.J. Malaviya, Adv. in No. 52,;
Excerpt:
- .....the common question in theseproceedings is whether an affidavit filed by a debtorof an insolvent banking company under rule 15 ofthe travancore-cochin banking company rules,1955, in reply to a list filed by the liquidator undersection 45-d (2) of the banking companies act 1949wherein he claims that money is due to him fromthe company and that an account should be taken,is a written statement pleading a set off within themeaning of item 1 of the schedule 1 to the travancore-cochin court-fees act ii of 1125 and liable tocourt-fee as such, i do not think it is, even if weassume that such an affidavit is a written statement.for, under section 529 of the companies act 1956, read with section 47 of the kerala insolvency act, in the easelof mutual dealings an account has to he taken andonly.....
Judgment:

Raman Nayar, J.

1. The common question in theseproceedings is whether an affidavit filed by a debtorof an insolvent banking company under Rule 15 ofthe Travancore-Cochin Banking Company Rules,1955, in reply to a list filed by the liquidator underSection 45-D (2) of the Banking Companies Act 1949wherein he claims that money is due to him fromthe company and that an account should be taken,is a written statement pleading a set off within themeaning of item 1 of the schedule 1 to the Travancore-Cochin Court-fees Act II of 1125 and liable tocourt-fee as such, I do not think it is, even if weassume that such an affidavit is a written statement.For, under Section 529 of the Companies Act 1956, read with Section 47 of the Kerala Insolvency Act, in the easelof mutual dealings an account has to he taken andonly the balance of the account can be claimed bythe one party or the other, as the case may be. Itis only this balance if it is in favour of the company,that the liquidator is entitled to claim, and an affidavit by a debtor claiming credit for money due tohim and asking for an account to be taken is nota written statement claiming a set-off under Order 8,Rule 6 C. P. C., (the law having already effected aset off) but is analogous to a written statement bya defendant in a suit on accounts claiming creditfor sums not allowed by the plaintiff. Now whenthe affidavit is filed in answer to a claim madeagainst the debtor, it can be regarded as a petitionto the court. I therefore hold that such affidavitsare not liable to court-fee.


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