Skip to content


In the Matter of Agricultural and Industrial Bank Ltd.; - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtChennai High Court
Decided On
Case NumberO.P. No. 73 of 1953 and Appln. No. 246 of 1956
Judge
Reported inAIR1957Mad295
ActsBanking Companies Act, 1949 - Sections 38 and 45F; Banking Companies (Amendment) Act, 1950; Banking Companies (Amendment) Act, 1953; Limitation Act, 1908 - Schedule - Article 115
AppellantIn the Matter of Agricultural and Industrial Bank Ltd.; ;In the Matter of Official Liquidator Agricu
Advocates:M.L. Nayak, Adv.;M.G. Kamath, Adv.
Excerpt:
- .....the basis of this article the liquidator has also claimed interest at nine per cent.which, on the date the claim was filed, amounted to rs. 1,294-3-9.3. mr. kamath, learned counsel for surendranath nayak resisted the claim on the ground that it is barred by limitation. counsel for the liquidator, however, relies on section 45f of central act xx of 1950 and section 45-0 of central act 52 of 1953. ordinarily, under the limitation act the claim would have been barred within three years from 4th january 1950, which is the date on which the directors of the bank declared that these shares had been forfeited. section 45f of central act 20 of 1950, however, enacts,'notwithstanding anything to the contrary contained in the indian limitation act ..... in computing the period of limitation.....
Judgment:
ORDER

Balakrishna Ayyar, J.

1. On 18th June 1956 Surendranath Nayak acquired 60 shares in the Agricultural and Industrial Bank Ltd., Coondapoor, now in liquidation. The shares were of the face value of Rs. 50 on which only Rs. 10 had been paid. On 4th January 1950 the directors declared these shares to be forfeited to the bank on the ground that the ca'ls due on the shares had not been paid. On 18th February 1953 a petition was filed in this court for winding up the Bank, and, on 6th April 1953, an order was made directing that the bank be wound up.

2. On 12th January 1956 the liquidator filed a claim against Surendranath Nayak for a sum of Rs. 2400 being the amount of the unpaid calls on the 60 shares. Article 34 of the Articles of the Bank empowered the directors to charge interest on arrears of calls at a rate not exceeding nine per cent per annum. On the basis of this article the liquidator has also claimed interest at nine per cent.

which, on the date the claim was filed, amounted to Rs. 1,294-3-9.

3. Mr. Kamath, learned counsel for Surendranath Nayak resisted the claim on the ground that it is barred by limitation. Counsel for the liquidator, however, relies on Section 45F of Central Act XX of 1950 and Section 45-0 of Central Act 52 of 1953. Ordinarily, under the Limitation Act the claim would have been barred within three years from 4th January 1950, which is the date on which the directors of the Bank declared that these shares had been forfeited. Section 45F of Central Act 20 of 1950, however, enacts,

'Notwithstanding anything to the contrary contained in the Indian Limitation Act ..... in computing the period of limitation prescribed for any suit or application by a banking company, the period of one year immediately preceding the date of the order for the winding up of the banking company shall he excluded.'

By virtue of this section the liquidator would be entitled to exclude the one year immediately preceding 6th April 1953 which is the date on which the order to wind up the company was made.

4. Section 45 (o) (1) of Act 52 of 1953 runs:

'Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (IX of 1908) or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded.'

It will be noticed that this section differs from Section 45-F of Act XX of 1950 in two respects. In the first place, the time which is excluded is not the time commencing from the day on which the order of winding up was made, but the time commencing from the day on which the petition to wind up the company was presented. In the second place, the period of time excluded is not one year but the entire period commencing from the date of the presentation of the winding up.

5. The argument of the learned counsel for the liquidator was this. By reason of Section 45-F of Act XX of 1950 the claim was alive on 30th December 1953 when the Act 52 of 1953 came into force. Nothing in Act 52 of 1953 affects the life or en-forceability of that claim. On the other hand, the Act gives a further period of limitation.

6. He also referred to Section 6 of the General Clauses Act to support this contention. That section, so far as is now material, runs as follows:

'Where ..... any Central Act ..... made afterthe commencement of this Act, repeals any enactment ..... then, unless a different intention appears,the repeal shall not-

(c) affect any right, ..... acquired, .... underany enactment so repealed;

(e) affect any ..... remedy in respect of anysuch right ..... as aforesaid.'

When Act 52 of 1953 was passed the remedy which the liquidator had against Surendranath Nayak was alive, and, that remedy was kept alive by reason of Section 6 of the General Clauses Act

7. Mr. Kamath the learned counsel for Sur-endranath Nayak, contended that this is not the way in which the sections should be read. According to him, there is no justification for adding on the period referred to in Section 45-0 of Act 52 of 1953 to the period referred to in Section 45-F of Act XX of 1950. Act 52 of 1953 came into force on 30th December 1953 and that was the Act in force on 12th January 1956 when the claim was filed. Wo must try to see whether the claim was in time with reference to the Act which was in force on the date the claim was filed. When we try to do that it will he found that the only period that can be excluded is the time commencing from 6th April 1953. But, the claim had already become barred on 6th April 1953.

8. I prefer the reasoning of the learned counsel for the liquidator. The argument of Mr. Kamath in effect and in substance ignores the provisions of Act XX of 1950. Before that argument can be accepted, we must postulate that Act XX of 1950 had never been passed. Such an assumption cannot properly be made. On the day that Act 52 of 1953 became law the claim which the Official Liquidator has preferred was alive, and it is not to be readily supposed that when it passed Act 52 of 1953 the legislature intended that the rights and remedies which were alive on that date should be destroyed. The contention that the claim is barred by limitation must therefore be overruled.

9. Debtor No. 30, it is reported, is dead. The liquidator will take steps to bring on record his legal representatives.

10. So far as the other debtors are concerned,Mr. Kamath strongly argued that interest has beenclaimed at 9 per cent, that the amount of the interest alone now comes to more than one-half of theprincipal, that all these debtors are people with verylimited income and that some induigence should beshown to them by at least disallowing the claim ofthe liquidator for interest. I can sympathise withthe point of view which Mr. Kamath pressed butthen, I have also to take into account the interestsof the people who have put money into this bank.If the position of the bank is as if was explained tome by the learned counsel for the liquidator, it isvery unlikely that the creditors of the Bank wouldget even two. annas in the rupee. I feel that itwould be scarcely right to pass_ an order that wouldreduce even this small dividend. However, as ameasure of indulgence to the debtors and also as anincentive to them to pay promptly, I would givethis direction; if the amount of the principal claimed is paid with interest at 4 1/2 per cent within sixmonths from today, the liquidator may take theamount in full quit; if the amount is not paid within six months, the debtors must pay interest at nineper cent.

11. The h'quidator will be entitled to his costs.Advocate's fee on the usual scale. Certificates willissue on the basis of this order as against eachdebtor other than debtor No. 30 in respect of whomsteps must be taken to bring on record his legal representative.


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