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The Bank of Commerce Ltd. Vs. Joseph Abraham - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberApplication No. 113 of 1965 in B.C.P. No. 5 of 1951
Judge
Reported inAIR1966Ker147
ActsDebt Law; Kerala Agriculturists Debt Relief Act, 1958 - Sections 15 and 16(3); Companies Act, 1956 - Sections 446; Banking Companies Act, 1949 - Sections 45B
AppellantThe Bank of Commerce Ltd.
RespondentJoseph Abraham
Appellant AdvocateCourt Liquidator
Respondent Advocate Joseph Augustine, Adv.
Cases ReferredThomas John v. Palai Central Bank Ltd.
Excerpt:
- .....central bank ltd. 1961 ker lt 648 which though rendered with reference only to section 45b of the banking companies act and not with reference to section 446 of the companies act proceed on the basis that such proceedings are not proceedings against the creditors. but there can be little doubt that an application to restrain a creditor from executing a decree obtained by him is a proceeding against him and when the creditor is, in this case, a banking company that has been ordered in be wound up, both section 446 of the companies act and section 45b of the banking companies act are attracted.2. the interim stay ordered in respect ofall further proceedings in a. d. r. p. 1 of 1965of the sub-court, meenachil is set aside butthere will be a stay of the application madetherein against the.....
Judgment:
ORDER

P.T. Raman Nayar, J.

1. I am inclined to the view that an application under Section 15 of the Act 31 of 1956 is not a proceeding against the creditors of the applicant debtor so as to bring Section 446 of the Companies Act into play when one of the creditors happens to be a company in respect of which a winding up order has been made--see the observations in Jaini Ali v. Narayana Pillai 1961 Ker LT 174 and in Thomas John v. Palai Central Bank Ltd. 1961 Ker LT 648 which though rendered with reference only to Section 45B of the Banking Companies Act and not with reference to Section 446 of the Companies Act proceed on the basis that such proceedings are not proceedings against the creditors. But there can be little doubt that an application to restrain a creditor from executing a decree obtained by him is a proceeding against him and when the creditor is, in this case, a banking company that has been ordered in be wound up, both Section 446 of the Companies Act and Section 45B of the Banking Companies Act are attracted.

2. The interim stay ordered in respect ofall further proceedings in A. D. R. P. 1 of 1965of the Sub-Court, Meenachil is set aside butthere will be a stay of the application madetherein against the petitioner banking companyunder Section 16(3) of Act 31 of 1958.


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