Skip to content


K. Joseph Augusti and ors. Vs. M.A. Narayanan - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtKerala High Court
Decided On
Case NumberOrder on preliminary objections regarding competency of appeal in A.S. Nos. 37, 39 and 45 of 1962
Judge
Reported inAIR1963Ker72; [1963]33CompCas126(Ker)
ActsBanking Companies Act, 1949 - Sections 45A, 45G, 45N, 45N(1) and 45N(2); Companies Act, 1956 - Sections 483; Kerala High Court Act, 1959
AppellantK. Joseph Augusti and ors.
RespondentM.A. Narayanan
Appellant Advocate T.S. Krishnamoorthy Iyer, Adv. (in No. 37/62),; K.P. Abraham and;
Respondent Advocate K.V. Suryanarayana Iyer and; C.M. Devan, Advs.
Cases ReferredMadhaya Naik v. Popular Bank Ltd. Alleppey
Excerpt:
.....933 (ker) overruled]. - this will clearly show that the section has nothing to do with matters like the direction for a public examination under section 45-g of the banking companies act, 1949. 9. a, n......appeals from an order directing the public examination of the appellants under section 45-g of the banking companies act, 1949. he contends that no appeal is competent in view of section 45-n of that act.2. sub-section (1) of section 45-n provides that an appeal shall, lie from any order or decision of the high court in a civil proceeding under the act when the amount or value of the subject-matter of the claim exceeds five thousand rupees. sub-section (3) of section 45-n says that subject to the provisions of sub-section (1) and sub-section (2) we are not concerned with sub-section (2) and notwithstanding anything contained in any other law for the time being in force.'every order or decision of the high court shall be final and binding for all purposes as between the banking company on.....
Judgment:
ORDER

1. The respondent, the Official Liquidator of the, Palai Central Bank Ltd., raises a preliminary objection to the maintainability of these appeals from an order directing the public examination of the appellants under Section 45-G of the Banking Companies Act, 1949. He contends that no appeal is competent in view of Section 45-N of that Act.

2. Sub-section (1) of Section 45-N provides that an appeal shall, lie from any order or decision of the High Court in a civil proceeding under the Act when the amount or value of the subject-matter of the claim exceeds five thousand rupees. Sub-section (3) of Section 45-N says that subject to the provisions of Sub-section (1) and Sub-section (2) we are not concerned with Sub-section (2) and notwithstanding anything contained in any other law for the time being in force.

'every order or decision of the High Court shall be final and binding for all purposes as between the banking company on the one hand, and all persons who are parties thereto and all persons claiming through or under them or any of them, on the other hand.'

3. An identical objection came up for consideration in Madhaya Naik v. Popular Bank Ltd. Alleppey, 1960 KerLT 581 : (AIR 1961 Ker 14). In that case a Division Bench of this Court held that Section 45-N

'provides for appeal against orders or decisions ofa Single Judge of a High Court to a superior Court'

and that the said section.

'cannot affect the right of appeal from the orders or decisions of a Single Judge of a High Court to a larger Bench of the same court, if there is a statutory provision to that effect.'

4. We do not think that the appeal contemplated under Section 45-N of the Act relates to an appeal from a decision of this Court to a superior Court. Section 45-U of the Act deals with the power of a High Court to make rules, and it says that a High Court has the power to make rules prescribing.

'the authority to which, and the conditions subject to which, appeals may be preferred, and the manner in which such appeals may be filed and heard'.

The provision affords a clear indication of the fact that the appeal contemplated by Section 45-N is not to a Court superior to the High Court, namely, the Supreme Court of India; but to an appeal within the High Court itself.

5. Section 2 of the Banking Companies Act, 1949, provides that the provisions of the Act shall be in addition to, and not, save as thereinafter expressly provided. In derogation of, the Companies Act, 1956, and any other law for the time being. In force, Section 483 of the Companies Act, 1956, says:

'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 its ordinary jurisdiction.'

6. Sections 45-A to 45X form Part IIIA of the Banking Companies Act, 1949. Section 45-A reads as follows:

'The provisions of this Part and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in the Companies Act, 1956 or the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1898 or any other law for the time being in, force or any instrument having effect by virtue of any such law; but the provisions of any such law or instrument in so far as the same are not varied by, or inconsistent with, the provisions of this Part or rules made thereunder shall apply to all proceedings under this Part.'

The question for determination is the extent of the inroad made by Section 45-N of the Banking Companies Act, 1949, on the power conferred by Section 483 of the Companies Act, 1956.

7. Sub-section (1) of Section 45-N of the Banking Companies Act, 1949, has apparently nothing to do with an order for public examination under Section 45-6 of the Act. What it does is to enact a proviso to Section 483 of the Companies Act, 1956, a proviso which in effect will read as follows:

Provided that no appeal shall lie from any order of decision of the High Court in a civil proceeding under the Banking Companies Act, 1949, when the amount or value of the subject-matter of the claim does not exceed five thousand rupees.

In other words, the effect of Section 45-N, as we see it, is only to restrict the right of appeal granted by Section 483 of the Companies Act in the cases specified in Sub-sections (1)and (2) of Section 45-N, and not to affect the right of appeal conferred by Section 483 in respect of any other matter.

8. The way in which finality is conferred by Sub-section (3) of Section 45-N is significant. It says that the decision shall be final and binding for all purposes as between the banking company on the one hand, and all persons who are parties thereto and all persons claiming through or under them or any of them, on the other hand. This will clearly show that the section has nothing to do with matters like the direction for a public examination under Section 45-G of the Banking Companies Act, 1949.

9. A, N. Aiyar's commentary to Section 45-N of the Banking Companies Act, 1949, says that when we read Sub-sections (1) and (3) together it becomes, apparent that the scope of those sub-sections is not general but is restricted to cases (a) where there is a claim the subject matter of which can be valued in terms of money, (b) the company is one party to the claim and (c) there are other persons against whom the claim is made or who are the claimants; and that the section, therefore, does not apply to an order directing a public examination of a director or officer of a banking company. We are in agreement with this view and hold that the appeals before us have nothing to do with Section 45-N of the Banking Companies Act, 1949; that they are governed only by Section 483 of the Companies Act, 1956, and the Kerala High, Court Act, 1959 and the rules framed thereunder; that under those provisions the appeals are competent; and that the preliminary objection should be overruled. We decide accordingly.


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