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The Bank of Deccan Ltd. (In Liquidation) Represented by P.S. Anwar, Official Liquidator, High Court of Kerala, Ernakulam Vs. Anthira Clement of Arattukulangara Veettil and ors. - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 1189 of 1969
Judge
Reported inAIR1972Ker215
ActsBanking Companies Act, 1949 - Sections 45B, 45C and 45C(4)
AppellantThe Bank of Deccan Ltd. (In Liquidation) Represented by P.S. Anwar, Official Liquidator, High Court
RespondentAnthira Clement of Arattukulangara Veettil and ors.
Advocates: T.V. Ramakrishnan, Adv.
DispositionPetition allowed
Excerpt:
- - 4. the object of providing speedy disposal of winding up proceedings and of obviating the official liquidator to attend to litigations in various courts regarding the same company would be defeated if a different interpretation were to be accepted......for the purpose of s 45-c (4), it would amount to the proceeding being continued in the court in which, it was pending.4. the object of providing speedy disposal of winding up proceedings and of obviating the official liquidator to attend to litigations in various courts regarding the same company would be defeated if a different interpretation were to be accepted. the expression 'pending proceedings' used in section 45-c can therefore be construed as only covering the actual proceedings which were pending at that time and not appeals or revisions from the orders passed in the pending proceedings. the decision of the court below is therefore erroneous. it is accordingly set aside and the lower court is directed to return the appeal to the party as not being maintainable in that court......
Judgment:
ORDER

P. Unnikrishna Kurup, J.

1. The revision petitioner is the official liquidator. High Court of Kerala, and this petition is directed against an order of the District Court of Alleppey overruling a preliminary objec-tion raised by the petitioner regarding the jurisdiction of that court to entertain an appeal. The question that arises for consideration relates to the interpretation of Section 45-B of the Banking Companies Act, 1949. After the liquidation proceedings relating to the petitioner-Bank commenced, a report was filed bv the court-liquidator before the High Court under Section 45-C (2) of the Banking Companies Act. The High Court by its order dated 8-7-1966 allowed the proceedings then pending before the Subordinate Judge's Court, to continue in that court. Accordingly, the Subordinate Judge proceeded with the case on its file and disposed it bv the judgment dated 23rd July 1968. Thereupon, the present appeal was filed before the District Court and the question mooted is whether the appeal is maintainable in the District Court in view of Section 45-B of the Banking Companies Act. The court below has taken the view that by the permission granted by the High Court to continue the original suit in the Subordinate Judge's Court, an appeal to the District Court is also maintainable since the appeal is only a continuation of the suit and when an ordinary Civil Court has tried the suit, the appellate court gets jurisdiction to dispose of the appeal filed before it.

2. I am unable to agree with the view taken by the lower court. That court, in paragraph 5 of the order, has remarked that the pendency of the appeal has been brought to the notice of the High Court and the High Court did not think it proper to withdraw the matter to its own file. This statement is factually wrong as the pendency of the suit alone had been brought to the notice of the High Court and it gave permission to the Sub Court to continue with the suit. No permission to file the appeal before the District Court was taken from the High Court and the question which arises for consideration is whether the permission granted for the continuance of the suit would operate as a permission for the filing of the appeal also. Section 45-B of the Banking Companies Act confers exclusive jurisdiction on the High Court to entertain and decide any claim made by or against a Banking Company and the only exception to this rule is what is provided in Section 45-C.

The object of the conferment of the exclusive jurisdiction on the High Court is to provide speedy disposal of winding up proceedings and what is saved by Section 45-C is only proceedings pending in any other court immediately before the commencement of the order of the winding up of the Banking Company and that too only after the High Court receives a report regarding such pendency and decides not to transfer the proceedings to its own file. What has happened in this case is that thg original suit in the Sub-Court was pending at the time the winding up proceedings commenced and this fact was reported as required by Section 45-C. The High Court allowed the proceedings to continue there, and it stands to reason that what has been allowed is only the continuance of the original suit that was pending in the Sub-Court.

Although for certain purposes, an appeal is considered to be a continuation of the original suit, it cannot be stated to be so for all purposes. A reading of Section 45-C (4) makes it clear that if any proceeding pending in a court is not transferred to the High Court under Subsection (3) such proceeding shall be continued in the court in which, the proceedins was pending. The appeal has necessarily to be in another court and therefore it is logical to infer that after the disposal of the original suit, the proceedings subsequent to it namely, the appeal, does not come within the ambit of Section 45-C because the appeal necessarily has to be in a court in which, the proceeding was not pending at the time the winding up proceedings commenced.

3. The learned counsel for the respondents brought to my notice the decision of this Court in Alphonse Lig-ouri v. Court Liquidator, (1967 Ker LT 1102). There, the question which arose for consideration was whether the court Which had been empowered to execute the decree under Section 45-C (4) of the Banking Companies Act had jurisdiction to entertain and dispose of the claim petition or objection to attachment filed under Order 21, Rule 58. Civil Procedure Code. The court held that the court which had been empowered to execute the decree had authority to dispose of the claim petition also and that the proceedings under Order 21, Rule 58, Civil P. C., arose incidental to the execution of the decree.

I am afraid, the principle En this decision cannot he extended to appeals. Order 21, Rule 58. Civil P. C.. confers jurisdiction only on the execution court to decide any claim or objection to an attachment and it therefore stood to reason that the court which had been empowered to dispose of the execution petition had the power to enquire into the claim petition also. The position regarding the appeal is not the same. The appeal commences new proceedings in another court and although it may be a continuation of the suit for certain purposes, I do not think that for the purpose of S 45-C (4), it would amount to the proceeding being continued in the court in which, it was pending.

4. The object of providing speedy disposal of winding up proceedings and of obviating the official liquidator to attend to litigations in various courts regarding the same Company would be defeated if a different interpretation were to be accepted. The expression 'pending proceedings' used in Section 45-C can therefore be construed as only covering the actual proceedings which were pending at that time and not appeals or revisions from the orders passed in the pending proceedings. The decision of the court below is therefore erroneous. It is accordingly set aside and the lower court is directed to return the appeal to the party as not being maintainable in that court. In the circumstances, there will be no order regarding costs.


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