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Surendra Nath Dutta Vs. Mohini Mohan Chakravarty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2403 of 1951
Judge
Reported inAIR1954Cal73,[1953]23CompCas206(Cal),57CWN488
ActsBanking Companies Act, 1949 - Section 45A, 45B and 45F, ;Banking Companies (Amendment) Act, 1950 - Section 11; ;Code of Civil Procedure (CPC) , 1908 - Sections 48, 115 and 151
AppellantSurendra Nath Dutta
RespondentMohini Mohan Chakravarty
Appellant AdvocateRabindra Nath Bhuttacharjya, Adv.
Respondent AdvocateSushil Kumar Biswas, Adv.
Cases ReferredRaja Debi Baksh Singh v. Habib Shah
Excerpt:
- .....passed by the original side of this court appointing the official receiver as liquidator of the decree-holder bank. no steps were, however, taken to bring on the record the name of the official receiver in place of the original bank as decree-holder. all the offices of the bank were locked up, and the directors and the employees of the bank had no authority after 7-9-1950, to act in any manner on behalf of the bank.3. on behalf pf the official receiver it has been stated that he was first apprised of the pendency of these execution proceedings about 23-11-1950, from a letter which had been written by the pleader who had been in charge of the execution case to one of the ex-employees of the bank. on' 28-11-1950, the official receiver addressea a letter to the munsif in whose court the.....
Judgment:
ORDER

R.P. Mookerjee, J.

1. This is a debtor's application for the revision of an order passed by the Munsif at Basirhat, directing that an earlier order dismissing for default a certain execution case be set aside and the case restored to file along with the miscellaneous case which had been started in connection with those execution proceedings.

2. To appreciate the point raised before this Court, it will be necessary to refer in short to the relevant facts leading to the order of dismissal mentioned above. The Bank of Commerce obtained a decree against the debtor petitioner in the Court of Small Causes at Calcutta on 11-8-1938. Attempts were made to realise the decretal amount on different occasions, and on 8-8-1950, the last application for execution was filed. This was after an order was obtained from the Court of Small Causes for transfer of the decree to a Court in the District of 24 Pargannas. Prom the ordersheet it appears that the pleader who was engaged took various steps in connection with this execution case, though on 7-9-1950, an order had been passed by the Original Side of this Court appointing the Official Receiver as liquidator of the decree-holder Bank. No steps were, however, taken to bring on the record the name of the Official Receiver in place of the original Bank as decree-holder. All the offices of the Bank were locked up, and the directors and the employees of the Bank had no authority after 7-9-1950, to act in any manner on behalf of the Bank.

3. On behalf pf the Official Receiver it has been stated that he was first apprised of the pendency of these execution proceedings about 23-11-1950, from a letter which had been written by the pleader who had been in charge of the execution case to one of the ex-employees of the Bank. On' 28-11-1950, the Official Receiver addressea a letter to the Munsif in whose court the proceedings were pending and intimated him that he had been appointed liquidator, and some time might be given for taking formal steps. This letter was put up before the Munsif on 30-11-1950. From a note made by the Munsif on this letter it appears that he directed that the letter might be put up along with the record. On 13-12-1950, the next date of the hearing of the execution case along with the miscellaneous case which had been started in the meantime, the letter in question was not put up, and the execution case was dismissed for default.

4. It was not till 15-1-1951, that the Court in charge of the liquidation proceedings permitted the Official Receiver to proceed with the pending cases. A copy of this order was obtained by him on 14-2-1951, when the Official Receiver directed steps to be taken in all the pending proceedings and litigations in the different Courts. He came to know for the first time on 28-3-1951, that the execution case in question had already been dismissed for default on 13-12-1950. On 26-4-1951, an application purporting to be under Section 151, C. P. C. was filed on behalf of the Official Receiver for setting aside the order of dismissal passed on 13-12-1950. In this application most of the facts which are referred to above were referred to. Simultaneously, another application was filed on the same day for bringing on the record the name of the Official Receiver on behalf of the decree-holder Bank. The learned Munsif after allowing the parties to adduce evidence allowed the application on 21-7-1951. It is against this order that the judgment-debtor has moved this Court and obtained the present Rule.

5. Two points have been urged on behalf of the judgment-debtor petitioner. It is contended that on the date the application under Section 151 had been filed, the Basirhat Court had no jurisdiction as under Sections 45A and 45B, Banking Companies Act, 1949, (Act 10 of 1949) read with Section 11, Banking Companies (Amendment) Act, 1950 (Act 20 of 1950), the only Court which had Jurisdiction was the Court in which the liquidation proceedings were pending, viz., the Original Side of this Court.

6. Secondly, it is urged that on the date the application under Section 151, Civil P. C. was moved, it was beyond twelve years from the date of the decree as originally passed, and the Court had no jurisdiction to revive a decree which had already become barred.

7. So far as the first point is concerned, it is wholly a misconceived one. The application which was filed was not for the purpose of transferring the proceedings from the Basirhat Court to the Original Side of this Court, nor did the application pray for any decision on the question whether the proceedings which had been terminated on 13-12-1950, could be transferred to the Original Side or not.

8. Section 11, Banking Companies (Amendment) Act, 1950, provides:

'Where any proceeding for the winding up of banking company or any other proceeding, whether civil or criminal, which has arisen out of or in the course of such winding up, is pending in any Court immediately before the commencement of this Act, it shall stand transferred on such commencement to the Court which would have had jurisdiction to entertain such proceeding if this Act had been in force on the date on which the proceeding commenced, and the Court to which the proceeding stands so transferred shall dispose of the proceeding as il this Act and the amendments made thereby were applicable thereto.'

9. In -- 'Jadunath Boy v. Bank of CalcuttaLtd.' : AIR1952Cal506 (A), a Special Bench of thisCourt held that the High Court alone had jurisdiction to deal with the matters which arise outof winding up of a banking company or whichmay in any way relate thereto; such transfer isautomatic, and no order of the Court is necessary;on a formal information from the High, Court,the records of the proceeding must be sent tothe High Court. But Section 11, Banking Companies(Amendment) Act, 1950, makes it abundantly clearthat only such proceedings relating to a bankingcompany which might have been pending in anyCourt other than the High Court on the date ofthe amending Act 20 of 1950 came into forcewould stand transferred to the High Court. Theamending Act came into force on 18-3-1950. Theexecution proceedings in the case now before mewere started more than four months later, viz.,on 8-8-1950. Section 11 of the amending Act takenalong with Sections 45A and 45B introduced into Act10 of 1949 would not be applicable in the presentcase. This view was taken in the Bench decision in -- 'Hemanga Coomar v. M. C. Chakravarty, : AIR1952Cal732 (B). In that case, it wasnot necessary at the stage in which the questionhad come up before this Court to give any decision as to what would be the procedure to be followed in the case of a proceeding which was pending on 18-3-1950. I am also not required to express any opinion at this stage as to what procedure ought to be followed in a case of thisdescription.

10. The same view appears to have been taken by the Bombay High Court in -- 'Fortune Commercial Bank Ltd. v. Vidya Gauri J. Mehta', : AIR1951Bom274 (C). As a matter of fact, the provisions contained in the section are clear enough, and no other interpretation is possible.

11. The objection, therefore, raised on behalf of the judgment-debtor that the proceedings had automatically stood transferred to the Original Side of this Court, as soon as the application for the winding up of the banking company was filed in this Court cannot be sustained.

12. The next question for consideration is whether the application would lie on the date when it was actually made. In the first place, my attention has been drawn to the provisions contained in Section 45P, Banking Companies Act, 1949, a provision introduced into the original Act by the Banking Companies (Amendment) Act, 1950. This section provides a special period of limitation in the case of certain proceedings, and the section is in the following terms:

'Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908, (9 of 1908) or in any other law for the time being in force, 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 be excluded.'

13. The decree was passed on 11-8-1938, and the twelfth year expired on 10-8-1950. The liquidator was appointed on 7-9-1960. If one year immediately preceding the date of the order for the winding up 'of the banking company be excluded, there is no doubt that on 26-4-1951, when the application purporting to be one under Section 151, Civil P. C. was filed, the execution case had not become barred on that date. The objection, therefore, raised on behalf of the judgment-debtor that the decree-holder was attempting to revive a decree which had already become barred is wholly untenable.

14. Even if Section 45P had not been introduced, it was open to the Court to entertain an application under Section 151, Civil P. C. in certain special cases if the Court was satisfied that the application made is not a fresh application as distinct from a continuation of a previous application under Section 48, Civil P. C.

15. The question whether an application is only ancillary to a previous application or is a fresh application depends upon the circumstances of each case.

16. It is now well settled that if an application is dismissed for statistical or administrative purposes, of if the previous application had been dismissed for no default of the decree-holder, the second application being similar in scope and character to the previous one, the latter will be deemed to be an ancillary one in continuation of the previous one. The theory of continuation applies where the previous application has been interrupted by reason of circumstances over which the decree-holder absolutely has had no control, -- 'Ventala Verrarazu v. Kuruvella Subbarayadu' AIR 1922 Madras 3 (D). See also, -- 'Kedar Natn v. Pradyot Kumar' 14 Cal LJ 610 (E). In an earlier Madras decision, the Court had gone to the length of treating the second application to be in continuation of the earlier application where the dismissal of the previous application was not known to the decree-holder, and such dismissal was not due to the laches of the decree-holder. Venkatamma v. Manikkam Nayani Varu' AIR 1915 Mad 407 at p. 411 (P).

17. It is also well settled that if there be dismissal due to the default on the part pf the decree-holder the application for restoration should not be considered to be an application in continuation of the earlier application -- 'Asa Nand v. Bishan Singh' AIR 1931 Lah 125 (G).

18. Although there are decisions to the contrary -- 'Bholu v. Bamlal' AIR 1921 Lah 67 (H), -- 'Harisingh v. Bulaqi Mal & Sons', AIR 1930 Lah 20 (1) -- 'Ritu Kuer v. Alakhdeo' AIR 1918 Pat 67 (J), -- 'Narayan v. Muthu Chettiar' AIR 1926 Mad 980 (K), it had been held in a Bench decision of this Court -- 'Radha Kissen v. Keshardeo', AIR 1946 Cal 488 (1), that a Court is not altogether incapable of restoring under Section 151, C P. C., an execution case dismissed for default. There must be, however, clear and justifying reasons for the exercise of such extraordinary powers.

19. In -- 'Saradindu Mukerjee v. Girish Chandra' : AIR1925Cal184 the trial Court had dismissed an execution case on the alleged ground that correct process fees had not been filed, and no further steps and been taken by the decree-holder. The Court found that the mistake was that of the Court, and the petitioners were not at fault. The order passed dismissing the execution case was set aside treating the application to be one under Section 151, C. P. C.

20. As was observed by the Judicial Committee in -- 'Raja Debi Baksh Singh v. Habib Shah' 40 Ind App 151 (PC) (N), quite apart from Section 151 Civil P. C., any Court might have rightly considered itself to possess the inherent power to rectify the mistake which had been inadvertently made. The facts in the case before the Judicial Committee were that the plaintiff was dead and the Court not being aware of his death dismissed the suit for non-appearance of the plaintiff. The Judicial Committee came to the conclusion that the dismissal was an abuse of the process of the Court, and the order itself was wholly unsupportable.

21. The special circumstances disclosed in the present case do not indicate that there had been any laches on the part of the Official Receiver in not making the application earlier. Before the order for dismissal had been passed by the learned Munsif, his attention had already been drawn to the fact that the Banking Company, figuring as the decree-holder, was not competent to have the carriage of the proceedings, and it was only the Official Receiver as liquidator appointed by the competent Court who was to have taken charge of the same.

22. On the facts and circumstances of this case I have no hesitation in coming to the conclusion that the learned Munsiff had jurisdiction to set aside the earlier order and on the facts that was the only and proper order that should have been passed.

23. Further, the debtor is now invoking the revisionary jurisdiction of this Court after the learned Munsiff had exercised his discretion under Section 151, C. P. C., and restored the execution case. I have grave doubts whether I have under Section 115, C. P. C., any jurisdiction to interfere with the discretionary order passed by the trial Court after I have reached the conclusion that the learned Munsiff had jurisdiction to make the order. No doubt this Court had in the exercise of its revisionary powers modified a similar order passed under Section 151, C. P. C. (-- 'AIR 1946 Cal 488 (1) ',) as this Court came to the conclusion that the dismissal was primarily due to the negligence of one of the parties. This Bench as constituted is no doubt bound by the above decision but as on the facts of the present case there is no ground for interference, it is not necessary to consider whether Section 115, C. P. C., could have been invoked even if the facts had been otherwise and laches on the part of the decree-holder had been proved.

24. The objections raised on behalf of the judgment-debtor must, therefore, be overruled & this Rule is discharged with costs. Hearing fee two gold mohurs.


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