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State Bank of Travancore Vs. K.P. Vasudevan Pillai Alias Govinda Pillai Vasudevan Pillai - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtKerala High Court
Decided On
Case NumberA.S. No. 423 of 1971
Judge
Reported in[1972]42CompCas366(Ker)
ActsKerala Agriculturists Debt Relief Act, 1970 - Sections 2(4) and 11; Banking Regulation Act, 1949 - Sections - 45, 45(4) and 45(9)
AppellantState Bank of Travancore
RespondentK.P. Vasudevan Pillai Alias Govinda Pillai Vasudevan Pillai
Appellant Advocate K.C. John, Adv.
Respondent Advocate K. Ravindranathan Nair, Adv.
DispositionAppeal allowed
Cases ReferredMerchants Bank Ltd. v. Dharmasambarthani Ammal
Excerpt:
.....45 (9) of banking regulation act, 1949 - appeal whether transfer of assets in favour of appellant bank was assignment and whether appellant bank come under exemption of section 2 (4) (a) (ii) - held, transfer in favour of appellant bank was by reason of operation of law as per section 45 (9) and not by assignment so it would not come within proviso of section2 (4) (a) (ii) -appeal allowed. - - these provisions clearly indicate that the transfer of the assets and liabilities is by operation of law and not by any voluntary act of the parties. but, under section 45, the amalgamation is effected compulsorily as a result of a recommendation made by the reserve bank of india on being satisfied that in the public interest or in the interests of the depositors or for a proper management of..........objected to the reliefs claimed in e.a. no. 91 of 1971 on the ground that the debt is due to the state bank of travancore which is a subsidiary bank to the state bank of india, coming within the exemption under section 2(4)(a)(ii) of act 11 of 1970. the court below, relying on the proviso to section 2(4)(a)(ii), held that the transfer of assets in favour of the appellant-bank was an assignment, and, therefore, the exemption was not available to the appellant-bank. it is the correctness of this finding that is challenged in this appeal.2. it is common case that the debt was due originally to the kottayam orient bank ltd. the reserve bank of india, in exercise of the powers conferred by sub-section (4) of section 45 of the banking companies act, 1949 (10 of 1949), directed the.....
Judgment:

Unnikrishna Kurup, J.

1. The decreeholder, the State Bank of Travan-core, is the appellant. The bank obtained a decree in O.S. No. 89 of 1962 on the file of the Sub-Court, Kottayam, for recovery of Rs. 13,95,4.07 with interest and costs against the respondent, and when execution was taken, the respondent filed E.A. No. 91 of 1971 under Act 11 of 1970 praying for determination of the amount due from him and also for allowing him to pay the amount in instalments. The appellant objected to the reliefs claimed in E.A. No. 91 of 1971 on the ground that the debt is due to the State Bank of Travancore which is a subsidiary bank to the State Bank of India, coming within the exemption under Section 2(4)(a)(ii) of Act 11 of 1970. The court below, relying on the proviso to Section 2(4)(a)(ii), held that the transfer of assets in favour of the appellant-bank was an assignment, and, therefore, the exemption was not available to the appellant-bank. It is the correctness of this finding that is challenged in this appeal.

2. It is common case that the debt was due originally to the Kottayam Orient Bank Ltd. The Reserve Bank of India, in exercise of the powers conferred by Sub-section (4) of Section 45 of the Banking Companies Act, 1949 (10 of 1949), directed the amalgamation of the Kottayam Orient Bank Ltd. with the State Bank of Travancore under a scheme prepared by them. By virtue of the amalgamation, the assets and liabilities of the Kottayam Orient Bank Ltd. became vested in the State Bank of Travancore and it was by reason of this amalgamation that the appellant-bank derived the right to file the suit against the respondent. Under Section 2(4) of Act 11 of 1970, a debt has been defined as 'any liability in cash or in kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act (11 of 1970), whether payable under a contract or under a decree or order of any court or otherwise'. Under Sub-clause (a)(ii) of that sub-section, the following class of debts has been excluded from the definition of debt :

'(a) any sum payable to--.........

(ii) the Reserve Bank of India or the State Bank of India or any subsidiary bank within the meaning of Clause (k) of Section 2 of the State Bank of India (Subsidiary Banks) Act, 1959, or the Travancore Credit Bank (in liquidation) constituted under the Travancore Credit Bank Act, IV of 1113: Provided that the right of the bank to recover the sum did not arise by reason of any assignment made subsequent to the 1st day of July, 1957.'

3. The question that directly arises for consideration is whether the right to recover the sum by the appellant-bank by reason of the amalgamation of the Kottayam Orient Bank Ltd. with the appellant-bank was derived under an assignment made subsequent to the 1st day of July, 1957, or under a transfer by operation of law. The lower court thought that the intention of the legislature was to confer the benefits of Act 11 of 19 70 on agriculturist-debtors notwithstanding the amalgamation, whether compulsorily or voluntarily, made after the 1st day of July, 1957, and that if the intention were otherwise, that could have been made clear by stating that voluntary assignments alone are brought within the purview of the proviso.

4. The Central Government notification sanctioning the amalgamation of the Kottayam Orient Bank Ltd. with the State Bank of Travancore was published in the Gazette of India, Extraordinary, dated 16th May, 1961, and shows that on the application of the Reserve Bank of India under Sub-section (1) of Section 45 of the Banking Companies Act, 1949, the Central Government had made an order of moratorium in respect of the Kottayam Orient Bank Ltd. under Sub-section (2) of Section 45. It further shows that thereafter under Sub-section (4) of Section 45 of the said Act the Reserve Bank had prepared a scheme for the amalgamation of the Kottayam Orient Bank Ltd. with the State Bank of Travancore and that the suggestions and objections raised by the two banking institutions had been considered as provided by Sub-section (6) of Section 45 and thereafter the Central Government had sanctioned the scheme in exercise of the powers conferred by Sub-section (7) of Section 45 of that Act. The result of an amalgamation is indicated in Sub-section (9) of Section 45. It provides that on and from such date as may be specified by the Central Government, the properties and assets of the banking company shall stand transferred to and vest in the transferee bank and also the liabilities of the banking company would become the liabilities of the transferee bank. These provisions clearly indicate that the transfer of the assets and liabilities is by operation of law and not by any voluntary act of the parties.

5. It may be noted that under Section 44A, the amalgamation of two banking companies can take place on a resolution approved and passed by a majority, in number, representing 2/3rds in value of the shareholders of each of the said companies. There would have been some force in contending that, in such cases there is a voluntary amalgamation in the sense that it is by reason of a deliberate act of the two banks that the amalgamation takes place. But, under Section 45, the amalgamation is effected compulsorily as a result of a recommendation made by the Reserve Bank of India on being satisfied that in the public interest or in the interests of the depositors or for a proper management of the banking company, an amalgamation of the company with any other banking institution is necessary. It is under Section 45 that the amalgamation has been effected between the Kottayam Orient Bank Ltd. and the State Bank of Travancore and it is therefore clear that there has been no voluntary transfer of assets by the Kottayam Orient Bank Ltd., in which case alone there could be an assignment. The lower court is clearly in error in thinking that the transfer took place as a result of an assignment.

6. In Webster's Third International Dictionary, the word 'assign' has been defined as ' to transfer to another in writing one's title or interest in the property '. In Sailendra Kumar Ray v. Bank of Calcutta Ltd., [1948] 18 Comp. Cas. 1 ; A.I.R. 1948 Cal. 131 Chakravartti J., referring to Order 21, Rule 16, of the Civil Procedure Code, pointed out that a transfer by operation of law could take place on death or by devolution or by succession and that in these instances there was no transfer by assignment. The facts of that case indicate that the transfer there took place by virtue of an order under Section 153A of the Indian Companies Act sanctioning a scheme of amalgamation of Jessore Loan Company with the Bank of Calcutta Ltd. That order provided for the transfer to the Bank of Calcutta of all the assets and liabilities of the Jessore Loan Company in accordance with the scheme of amalgamation and the question which arose for consideration was whether the transfer was by assignment or whether it was by operation of law. As stated earlier, it was held that the transfer was by reason of an order of the court and, therefore, was effected by operation of law and not by an assignment.

7. The Supreme Court, while approving the observations of Chakravartti J., pointed out in Jugalkishore Saraf v. Raw Cotton Co. Ltd., A.I.R. 1955 S.C. 376, 391 that the transfers by operation of law were not intended to be confined to the three cases of death, devolution or succession and that there could be transfers by operation of law in various other ways too. As instances, the Supreme Court pointed out that when a person is adjudged insolvent, his properties vest in the official assignee and the transfer is brought about by operation of insolvency laws which have been codified. Similarly, the court-sale of property in execution of a decree vests the right, title and interest of the judgment-debtor in that property in the auction-purchaser thereby effecting a transfer by operation of law embodied in the Code of Civil Procedure. The court finally observed that :

' It is neither necessary nor profitable to try and enumerate exhaustively the instances of transfer by operation of law. Suffice it to say that there is no warrant for confining transfers 'by operation of law' to transfers by operation of statutory laws. When a Hindu or a Mohammadan dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property ' by operation of law ' all that is necessary is that there must be a passing of one person's rights in property to another person by the force of some law, statutory or otherwise.'

8. It will be clear from the above discussion that the transfer of the assets belonging to the Kottayam Orient Bank Ltd. in favour of the State Bank of Travancore was by reason of operation of law and not by an assignment. By reason of the operation of Sub-section (9) of Section 45 of the Banking Companies Act, the assets of the Kottayam Orient Bank became vested in the State Bank of Travancore and the transfer is not effected by an assignment in which case alone it would come within the mischief of the proviso to Section 2(4)(a)(ii).

9. A Division Bench of the Madras High Court in Merchants Bank Ltd. v. Dharmasambarthani Ammal, [1967] 37 Comp. Cas. 227 (Mad.) has held that where under a scheme of amalgamation brought about by the Government of India under which transfer of assets took place, the transfer is by operation of law, which necessarily means that it is not under an assignment. We do not think it necessary to refer to other decisions cited at the bar since the position is clear that the transfer of assets in this case is not by reason of any assignment within the meaning of Section 2(4)(a)(ii), proviso.

10. The order of the court below is wrong and is, therefore, set aside. The appeal is allowed, but in the circumstances of the case there will be no order regarding costs.


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