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Smt. Jnanada Debi Vs. Nath Bank Ltd. (In Liquidation) - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 16 of 1970
Reported inAIR1979Cal246
ActsContract Act, 1872 - Section 46; ;Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 3; ;Specific Relief Act, 1963 - Section 28; ;Specific Relief Act, 1877 - Section 35
AppellantSmt. Jnanada Debi
RespondentNath Bank Ltd. (In Liquidation)
Appellant AdvocateP.K. Roy and ;Protap Chatterjee, Advs.
Respondent AdvocateAnindya Mitra, Adv.
DispositionAppeal dismissed
Cases ReferredT. S. R. Sarma v. Nagendra Bala Debi
- ramendra mohan datta, j.1. this appeal has been preferred from the judgment and decree dated dec. 1, 1969 passed by ghose, j. dismissing the suit filed by the plaintiff appellant jnanada debi. the suit was for rescinding a portion of the consent decree dated july 24, 1953 passed in extraordinary suit no. 13 of 1945, (sri bejoyananda bhowmic v. jnanada debi).2. the said extraordinary suit was originally filed at alipore by one bejoyauanda bhowmic for self and for other share-holders of nath bank ltd. against the appellant herein being title suit no. 71 of 1944. in that suit bejoyananda asked for setting aside and/or cancellation of a conveyance dated july 6, 1943 whereby the appellant purchased premises nos. 358a, 358b and 348d, southern avenue now known as 13a and 13b, lake temple road.....

Ramendra Mohan Datta, J.

1. This appeal has been preferred from the Judgment and decree dated Dec. 1, 1969 passed by Ghose, J. dismissing the suit filed by the plaintiff appellant Jnanada Debi. The suit was for rescinding a portion of the consent decree dated July 24, 1953 passed in Extraordinary Suit No. 13 of 1945, (Sri Bejoyananda Bhowmic v. Jnanada Debi).

2. The said Extraordinary Suit was originally filed at Alipore by one Bejoyauanda Bhowmic for self and for other share-holders of Nath Bank Ltd. against the appellant herein being Title Suit No. 71 of 1944. In that Suit Bejoyananda asked for setting aside and/or cancellation of a conveyance dated July 6, 1943 whereby the appellant purchased premises Nos. 358A, 358B and 348D, Southern Avenue now known as 13A and 13B, Lake Temple Road and 3B, Dr. Satyananda Boy Boad, Calcutta (hereinafter culled the suit premises) for Nath Bank Ltd. (In Liquidation).

3. The said Nath Bank Ltd. was directed to be wound up by an order dated May 8, 1950.

4. The said Title Suit No. 71 of 1944 was transferred to this Court and was marked as Extraordinary Suit No. 13 of 1945. A consent decree was passed therein on July 24, 1953, inter alia, declaring that the said premises belonged absolutely to the appellant Smt. Jnanada Debi. It was further ordered and decreed, by consent that upon payment by the said Official Liquidator of the said Bank out of its assets a sum of Rupees 46,000/- to the appellant Smt. Jnanada Debi, Jnanada Debi would execute and register a proper conveyance in favour of the said Official Liquidator of the said Bank in liquidation.

5. The appellant's case in the plaint is that she was always ready and willing to act in terms of the said consent decree but the Court Liquidator who was the Official Liquidator of the said Bank was not ready and willing to perform his part of the obligation imposed upon him by the said consent decree. It is further alleged that the said Official Liquidator rejected the title to the suit property and thus repudiated the contract contained in the said consent decree. It is further alleged that the circumstances have totally changed and if the said consent decree was not rescinded the appellant would suffer irreparable prejudice and it would be inequitable to enforce the said consent decree now.

6. The prayers in the plaint have to be particularly noticed in view of the fact that the appellant claimed a decree rescinding the decree dated July 24, 1953 passed in the said Extraordinary Suit No. 13 of 1945 in respect of the portion thereof relating to the transfer of the said property and if necessary, for setting aside the said portion of the said decree. The appellant has also claimed a declaration that the said portion of the said decree was unenforceable and a perpetual injunction has been prayed for restraining the bank from enforcing the said portion of the said decree. In. other words, the other remaining portion of the said decree was to remain intact and enforceable. It is to be noticed that the appellant did not claim to set aside or rescind the entire decree which was passed by consent but claimed only the partial rescission in respect of that portion which related to the transfer of properties from Jnanada Debi to the Court Liquidator, but as regards the declaration whereby the title to the said property was vested in the appellant, the same was not sought to be rescinded or set aside with the result that the same was allowed to stand affirmed. In short, the benefit received by her under the consent decree was sought to be enforced but not the obligation conferred thereunder.

7. The suit herein was filed on June 13, 1966 and Nath Bank in Liquidation, filed its written statement on Aug. 25, 1966 but the other defendants did not.

8. In the written statement filed herein the Bank denied the allegation that it had rejected the title or repudiated the contract. It was stated that the Bank duly tendered the draft conveyance and offered money and never abandoned any claim or right. It was also stated that the execution proceedings had been duly and lawfully started by the Bank and that the suit was not maintainable under the Banking Companies Act or under Section 28 of the Specific Relief Act, 1963 and/or under Section 47 of the Civil P. C. It was further stated that the appellant gave an undertaking to Court on March 19, 1953 in Matter No. 206 of 1950 that upon payment of Rs. 46,000/- by the Court Liquidator the appellant would execute the conveyance in respect of the suit properties and as such the appellant was estopped from claiming reliefs as prayed in the suit herein. In any event, the claim in the suit was barred by limitation.

9. Several issues were raised and settled at the trial.

The main question that came up for our consideration was whether in the facts and circumstances of this case there could be any question of default or abandonment or rescission of the contract i. e. the consent decree herein. In this connection, it is necessary to consider the averment made in paragraphs 5, 6 and 7 of the plaint filed herein. The said paragraphs read as follows :--

'5. By decree dated 24th July, 1953 made by consent in Extraordinary Suit No. 13 of 1945 it was, inter alia, decreed as follows :--

(i) It was declared that the plaintiff Juanada Debi was the owner of the properties in suit absolutely.

(ii) The plaintiff Jnanada Debi was direct ed to execute and register a proper conveyance in respect of the properties in suit in favour of the Official Liquidator Nath Bank Ltd. on a payment of a sum of Rs. 46,000/-out of the assets of the Bank ia liquidation, to the plaintiff Jnanada Devi. A true copy of the said decree is annexed hereto marked 'A' and may be treated as a part of the plaint. The said decree was not a decree for specific performance of any contract and there was no previous contract between the plaintiff and the defendant No. 1 herein relating to the said properties. The value of the said property was at that time Rupees 46,000/-. The consent of the plaintiff was obtained on the basis that the plaintiff will be able to buy a similar property in Calcutta within the purchase price.

6. By and under the said decree the respondent was entitled to obtain the transfer only within a reasonable time and only on payment of the said sum of Rs. 46,000/-, performance of the said decree was conditional upon acceptance of title and payment of the purchase money by the defendant No. 1 within a reasonable time.

7. The plaintiff was always ready and willing to act according to the terms of the said consent decree dated the 24th July, 1953 but the Official Liquidator and subsequently the Court Liquidator who was appointed Official Liquidator in their place failed to accept the title and rejected the same and did not want to complete the transaction on inter alia the grounds that the Income-tax Authorities had preferred claim against the said property on account of the alleged income-tax dues of the plaintiffs husband Kshetra Nath Dalai who was alleged by the Income-tax Authorities to be the real owner of the said property and that the plaintiff was only a benamdar. The said Liquidator did not accept the title of the said properties and rejected and/or must be deemed to have rejected the same. The defendant No. 1 thereby repudiated the said contract. The plaintiff accepted the said rejection and/or repudiation. The defendant No. 1 in spite of demands and direction of this Hon'ble Court failed and neglected to complete the transaction within a reasonable time or within the period of limitation or at all and failed and neglected to tender any draft conveyance and/or money and abandoned the said claim and/or right. The said portion of the said decree thereupon stood repudiated and/or rejected and/or rescinded and/or lapsed and/ or discharged and/or satisfied and/or abandoned and/or become stale. The said decree is no longer capable of enforcement.'

10. It would appear that in para. 5 of the plaint after setting out the gist of the said consent decree the plaintiff-appellant pleaded, inter alia, that the consent of the plaintiff was obtained on a certain basis; but curiously enough, even though an issue was raised in respect thereto no attempt was made whatsoever to prove the same and the learned Judge rightly decided the same against the plaintiff by observing that no evidence was adduced by the plaintiff in proof of the said issue. I entirely agree with the said finding.

11. Regarding paragraph 6 of the plaint it must be observed that what is reasonable time would depend on the facts of a particular case. The Explanation to Section 46 of the Contract Act provides that. In this case nothing has been pleaded as to what should be the reasonable time and the pleading therein is absolutely vague. There is no indication in the pleading as to when such time expired. In any event, in view of the fact that the decree was still enforceable it could not be said that the reasonable time to obtain the transfer expired or that the decree could be said to be conditional in the manner as alleged therein. In fact, no evidence was led and accordingly, the plaintiff-appellant could not succeed on the basis of the said allegation.

12. Regarding para. 7 of the plaint it must be held that the averments made therein are inconsistent with the averments made in para. 5 as set out hereinabove. It is also to be noticed that the appellant had been accepting the consent decree by her averments made in that paragraph and had been putting the blame on the Court Liquidator in not completing the transaction. The appellant had repeatedly adopted the said contract and/or the consent decree and had proceeded on that basis.

13. I have gone through the correspondence in this case and I am entirely in agreement with the learned trial Judge that the correspondence does not show or prove repudiation of the Bank's obligation under the consent decree. On the contrary, particularly the two letters both dated May 8, 1965 and both written by the Bank's solicitor Mr. B. K. Bose would show in what manner the Bank was anxious to complete the transaction. One of these letters was addressed to Kshetra Nath Dalai and the other one to the appellant, whereby the draft conveyance was sent to them for return after duly approving the same and for fixing a date for the execution and registration of the conveyance. Those two letters would not show that on behalf of the Bank the obligation to perform the contract was put an end to in any manner as has been alleged by the appellant.

14. I shall discuss this point in some more detail hereinafter but. suffice it to say for the present, that on the facts of this case, it cannot be said that the Bank repudiated or rescinded or abandoned the said consent decree.

15. In paragraph 11 of the plaint it has heen pleaded that by reason of the long delay the value of the money has depreciated and the sum of Rs. 46,000/- has become very inadequate in relation to the properties concerned. The situation has now completely changed and the substratum and/or the basis of the said consent decree has gone. The learned Judge also considered this point and found that no evidence was adduced nor any particulars were furnished in proof of the same. On the factual aspect of the matter I entirely agree with the learned trial Judge that the Bank was anxious to complete the transaction, as soon as the title was made out free from all encumbrances and there was no question of any repudiation of their obligation under the consent decree.

16. The nature and the special characteristics of a consent decree and under what circumstances a consent decree can be set aside was considered by R. C. Mitter. J. in the case of Nibaran Chandra Shaha v. Matilal Shaha reported in (1935) 39 Cal WN 938. At p. 942 the learned Judge observed:--

'In my judgment, consent decrees stand on an entirely different footing. Such decrees derive their force primarily from the consent of the parties. If, in fact, no consent was given, or if the parties had not been consensus ad idem, or if consent of one was procured by misrepresentation, under influence or coercion, the foundation of the decrees is shaken. See Huddersfield Banking Company v. Henry Lister and Sons Ltd. (1895) 2 Ch. 273. But the name of the aggrieved party appearing in the decree itself, he has to get rid of the decree and that he can do only by getting rid of the compromise, on which the decree is based, on any of the grounds on which a contract can be avoided, and this relief he can also obtain in a suit.' The learned Judge referred to the case of Wilding v. Sanderson reported in (1897) 2 Ch. 534 where relief was also granted in a suit. The observations of Byrne, J. made at pages 543 and 544 of the said report have been set out in the said judgment as laying down the correct principle to be applied in Such case. In my opinion, the said passage may also be conveniently quoted here as well.

'A consent judgment or order is meant to be the formal result and expression of an agreement already arrived at between the parties to proceedings embodied in an order of the Court. The fact of its being so expressed puts the parties in a different position from the position of those who have simply entered into an ordinary agreement. It is, of course, enforceable while it stands, and a party affected by it cannot, if he conceives he is entitled to relief from its operation, simply wait until it is sought to be enforced against him, and then raise by way of defence the matters in respect of which he desires to be relieved. He must, when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose. In my opinion, there was no agreement in the present case between the parties prior to the judgment being passed and entered, their minds never having been ad idem in respect of the subject-matter with which they were dealing. It also appears to me that the divergence of their minds was in respect of an essential or fundamental point. If there was no agreement, there was no consent upon which judgment could be founded. And just as a consent order may be set aside upon any of the grounds upon, which an agreement can be set aside, so it appears to me to follow that such an order may be set aside if it can be clearly proved that there was no agreement and consequently, no true consent to the order made: when it is once ascertained that there was no actual agreement arrived at before the judgment was completed, and that the consent upon which it purports to be founded never existed, the actual judgment pronounced does not I think, in itself constitute or represent an agreement, but stands as a judgment of the court made in pursuance of a supposed agreement or consent which both parties believed to exist, but which did not in fact exist.'

17. From the aforesaid observations it would appear that in the facts of that case before R, C, Mitter, J. no actual agreement had been arrived at before the judgment was completed and there was in fact no such consent upoa which the judgment was founded. Hence, such a consent decree was liable to be set aside because such a judgment was passed on the basis of an agreement which actually did not exist but both the parties believed that the same existed. But in the facts of the case before us the position is entirely different,

18. It is significant to note that in Nibaran Chandra Sana's case (1935) 39 Cal WN 938 R. C. Mitter, J, discussed various types of consent decrees and the various grounds for setting aside the same but that case even did not mention abandonment as a ground for setting aside a consent decree. This is a case where the period of limitation has not expired. Therefore, the decree stands. In any event, the plaintiff does not say that there was no consent. In other words, the consent given by the plaintiff was not in question. Even in the decree itself they are asking for selling aside only a portion of the decree. There is no averment made expressly or by necessary implication about such abandonment of the decree. Under those circumstances, it is the executing Court which could only consider, if at all, the question of abandonment or adjustment of the decree under Order XXI, Rule 2 of the Code.

19. It has been contended on behalf of the respondent Bank that in the plaint the relevant dales had not been mentioned specially about the breach of the contract, the abandonment of the reliefs and/or the acceptance of the repudiation.

20. Under Order 7 Rule 6 of the Civil P. C. it is provided that the plaint must show the ground upon which exemption from the law of limitation is claimed when the suit is instituted after the expiration of the period prescribed by the law of limitation. In the absence of such pleading the plaint should be held to be barred by lapse of time on the basis of it.

21. In para. 6 of the plaint it has been pleaded, inter alia, that the performance of the said consent decree was conditional upon acceptance of title and payment of the purchase money by the defendant No. 1 within a reasonable time. No particulars whatsoever have been furnished thereunder nor any time limit has been pleaded within which, according to the plaintiff appellant, the decree was to be performed. In paragraph 7 also no date has been mentioned to show, at what point of time there was failure on the part of the Official Liquidator to accept the title when the same was rejected. There was no date mentioned as to when the contract was repudiated nor as to when the repudiation was accepted. In my opinion, on the basis of such pleading the plaintiff cannot maintain this suit. Under such circumstances the plaint hardly discloses any cause of action. Moreover, no attempt had been made to discharge the onus which lay on the plaintiff particularly in respect of issues 1 and 2. The same related to the question of facts which had not been established at all. In the correspondence it is clear that the solicitors for the bank have asserted that the bank was always anxious to complete the transaction, as soon as the good title was made out free from all encumbrances. The learned Judge rightly held that under such circumstances, it could not be said that the bank had repudiated their obligation under the consent decree. All that the bank did was to intimate that the Income-tax authorities were claiming that the suit properties were benami properties of the husband of the plaintiff. The correspondence would further show that the draft conveyance of the suit properties were sent to the plaintiff's solicitors for their approval but the same had never been sent back after approval thereof. To rescind the contract it cannot be done unilaterally. If one party would intimate its intention not to perform his promise the other party must elect to treat it as the breach of the contract. The opening sentence of para. 7 of the plaint shows that the plaintiff was always ready and willing to act in accordance with the consent decree. The case made out in the plaint is of express rescission and no case of implied rescission has been pleaded. Hence rescission of the consent decree herein cannot be implied. Accordingly, it could not be urged that any inference should be drawn as to an intention to abandon the consent decree in the absence of any direct evidence in proof thereof. As observed above, no particulars have been furnished nor any attempt has been made to prove the rescission of the consent decree or the repudiation or the abandonment of the claim. These are questions of fact and the plaintiff appellant was to adduce evidence in respect thereto if she wanted to succeed.

22. In my opinion, since the plaint does not contain any pleading to the effect that the parties agreed that the contract would be performed within a particular point of time, there could be no question of any default or abandonment or rescission thereof. Under such circumstances, the defendant bank would be perfectly justified in asking for the completion of the performance of the terms of the consent decree at any time within the period of limitation. In any event, there is no evidence, either documentary or oral, to prove that the bank had failed to perform its part of the contract which was contained in the said consent decree.

23. It is true that the rights and obligations of the parties arise from and out of the consent decree which in effect is a contract between the parties yet the fact that it is a decree should not also be lost sight of. Being a decree it has acquired a longevity, the effect whereof cannot be ignored or undermined. By and with the consent of the parties such a decree might contain provisions whereby parties would be obliged to perform such obligation within a period mentioned therein. In such event, of course, the position might be different but in the absence of any such time limit being fixed the parries thereto cannot be deprived of the advantage of getting a period which is provided for the decrees under the Limitation Act. Within such period the parties would be entitled to put the decree in execution and, in such event, the other party would not be entitled to invoke the equitable principles which are applicable in the case of a specific performance of a contract. A Bench of this Court consisting of G. K. Mitter, J. (as he then was) and Musud J. expressed similar view in a similar case where the decree was obtained though not by consent but ex parte (Mrs. R. S. Pulger v. Sachindra Nath Bavick, in Appeal No. 246 of 1965 judgment dated May 20, 1966). Speaking for the Bench G. K. Mitter J. observed :--

'...... In this case the defendant did not prefer an appeal from the decree. Consequently it must be taken that she was quite content with the decree, she did not even think it worth' her while to contest the suit. No time for performance of the terms under the decree was fixed thereunder; consequently it was open to her to obtain an order for the completion of the contract by payment of the unpaid purchase money and offering to execute the conveyance and made over the title deeds. If such steps had been taken and the plaintiff had refused to pay the unpaid purchase money the defendant could have come to Court and applied under Section 35(c). But short of that I cannot see how the defendant can ask for relief under that section. Before the Court can make an order under Clause (c) it must be satisfied that the purchaser had made default in payment of the purchase money or any other sum which the Court had ordered him to pay. There can be no default unless a time limit has been fixed or an order has been made directing something to be done within that time. If neither party has taken any steps to secure compliance of the decree by the other the question of default does not arise unless it arises under the decree itself and the decree can be put to execution so long as the law of limitation permits.

XX XX XX..... There is nothing to show that the plaintiff has failed to perform his part of the contract. As there was no period fixed either under the decree or by any subsequent order of the Court directing the plaintiff to deposit the purchase money or any other sum for payment to the defendant the plaintiff cannot be held guilty of any default.

XX XX XX..... But mere delay in asking the defendant to execute and register the conveyance cannot lead to the inference that the contract was abandoned. It is no doubt true that readiness and willingness of a party must continue even after the passing of the decree in suit for specific performance but such readiness and willingness can only be disproved by showing that in spite of attempts to compel performance by the plaintiff the latter evinced no intention to carry out the obligation under the decree.

xx xx Xx That is not the case here. The matter hadpassed beyond the stage of the contract andthere was a decree. So long as the decree wasnot barred by lapse of time either partycould come in and put the same in execution.'

24. The above observations made in the above bench decision were also relied on by Ghose J. in deciding the suit, and I think, the learned trial Judge rightly held that the ratio of the said decision applied to the case herein. The distinction between the contract which was sought to be specifically enforced and the consent decree of the Court was clearly brought out and explained in the above bench decision. With great respect I am in entire agreement with the same.

25. What is most important to be considered in this case is that not only that the appellant did not prefer an appeal from the said decree dated July 24, 1953 and remained fully contented with the same but she had taken full advantage thereunder by adopting a part of it which went in her favour. That being so, it is difficult to appreciate how the appellant can be allowed to set aside a part of the decree which had gone against her interest. It is not a case where the decree was passed by describing it as a consent decree but actually there was no consent. Here in this case there is no contest with regard to the parties genuinely consenting to the agreement as provided in the consent decree itself. That being so, no part of the consent decree could be challenged any longer.

26. In the next place, it must be considered that for the purpose of execution, a consent decree, like any other decree, has a time limit within which the same was to be enforced or executed. If it is within the time provided by law and if there would be no other impediment which could stand in its way, then there could be no reason why the decree-holder in such a consent decree would not be allowed the total period of time to enforce the same and/or put it into execution. If the decree did not provide for any time limit for the completion of the transaction mentioned therein then the time for completion thereof could not be abridged unless in the meantime steps would be taken to abridge the same. In any event, mere delay would not be a ground to stop execution thereof if enforced within the period of limitation provided by law. So long as the provisions of the Specific Relief Act are not taken recourse to and a time limit is fixed the question of the rescission of the decree or the abandonment thereon could not arise.

27. The next point that is urged before us is that the suit in any event is hopelessly barred by the law of limitation. According to the plaintiffs own case the cause of action herein arose in 1954. The appellant filed this suit on June 13, 1966. The claim of the suit is nothing but to cancel or set aside the decree which comes within the provision of Article 59 of the Limitation Act 1963. The position would remain the same even if the suit is for the rescission of a contract and the same article would cover the said cause of action. The said Article reads as follows:---

'59.To cancel or set aside an instrument or decree or for the rescission of a contract.

Three years.When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.'

28. The plaintiff appellant was all along aware of the said consent decree and of the fact that a portion only of the said decree was sought to be rescinded or set aside or to have the same declared unenforceable. Accordingly, the averments in the plaint did not in any way extend the period in any manner so as to bring it within the period of three years next before the date of the filing of the suit. In any event no particulars relating to the date of rejection or rescission or the abandonment or repudiation or the acceptance thereof having been mentioned, the claim would undoubtedly come within the scope of the third column of Article 58 and would be clearly barred by limitation. Accordingly, I agree with the learned Judge that the claim in the suit herein, is barred by limitation.

29. A point has been taken that in view of Sub-section (4) of Section 28 of the Specific Relief Act, 1963 no separate suit in respect of any relief which might be claimed under that section would lie at the instance of a vendor or a purchaser or a lessor or a lessee as the case might be. Previously of course under the Act of 1877 under Section 35(c) thereof, in respect of a claim for a rescission of a contract, after a decree for specific performance such rescission could be claimed by a suit. That provision had been omitted and the new provision has been enacted in Section 28 of the Act of 1963. On behalf of the appellant it is contended that the cause of action arose in 1954 as pleaded in para. 6 of the plaint and. accordingly, a suit could have been filed before the coming into force of the Specific Relief Act, 1963. It follows, therefore, that it became a vested right acquired by the plaintiff appellant to pursue her cause of action on the basis of the then existing statute inasmuch as under the new provision of the Act of 1963 such vested right had not been expressly taken away.

30. Strictly speaking this point does not arise in the facts of this case inasmuch as the plaintiff appellant is not claiming to rescind the entire consent decree but is asking for a partial rescission thereof which in the facts and circumstances of this case I think, the plaintiff appellant was not entitled to. Reliance was placed on the case of Anandilal Poddar v. Gunendra Kumar Roy reported in : AIR1966Cal107 . In my opinion, the point that was raised in that case was whether under the Act of 1877 an application was also maintainable under such circumstances. In my opinion, that point is not germane in the facts before us and it is not necessary for me to express any opinion about the said decision except to say that the same has no application herein.

31. The next decision cited is the case of Gopeshwar Paul v. Jiban Chandra Chandra AIR 1914 Cal 806 (FB) in support of the proposition that though the procedure may be regulated by an Act for the time being in force still the intention to take away a vested right without compensation or any saving is not to be imputed to the legislature unless it be expressed in any unequivocal terms. In my opinion, that proposition has also been supported by the Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Chou-dhury, : [1957]1SCR488 where it was held that the vested right of appeal could be taken away only by a subsequent enactment, if it so provided expressly or by necessary intend-ment and not otherwise. That principle was also laid down in Henshall v. Porter, (1923) 2 KB 193 where the Gaming Act of 1922 which prohibited any action to recover back money paid in respect of gaming debts in any Court by the said Act of 1922, was considered in the light of the settled recognised and beneficent rule of law that existing rights were not to be deemed to be destroyed by a statute unless there be express words or the plainest implication to that effect.

32. All these cases dealt with matters where the litigant's vested right to sue was sought to be taken away or affected by the subsequent legislation but all we are concerned with is a mere change of procedure which has been provided by the Act of 1963. In any event, I should think that the point raised herein has nothing to do with the vested or any substantive rights of the appellant. The new provision merely laid down and brought about a change in the procedure and I do not see any reason in what way the right to sue would be lost if instead of a suit the legislature prescribed that an application was to be made and that was made the only remedy which was left open. By making such a provision a procedure is being laid down and no difficulty has been created in following the said procedure. Instead of pursuing the claim by a suit as was possible under the old Act of 1877, under the Act of 1963 an application and not a suit has been prescribed to be the procedure to seek the remedy. In this connection I find support of the view I have taken from the judgment of Chakravartti, C. J. in the following Full Bench reference matter.

33. In the said Full Bench Reference Matter in the case of T. S. R. Sarma v. Nagendra Bala Debi, : AIR1952Cal879 . Chakravartti C. J. speaking for the Bench at p. 881 observed :--

'There can be no doubt that if the change made by the section was one of mere procedure, it would apply even to pending suits unless it excluded itself from such suits by its own language. On the other hand if the change affected a substantive right, the section would not apply to pending suits, unless a clear intention that it should apply appeared from express words or followed from the necessary intendment of the Act or the section.'

34. In my opinion, the suit is also barred by Section 47 of the Civil P. C.

35. In the circumstances, the appeal is bound to be and is hereby dismissed with costs. All previous interim orders are de-solved and there will he an order for injunction restraining the plaintiff-appellant from encumbering or disposing of the properties in suit until further orders of this Court. The respondent bank would be at liberty to proceed with the execution application and to take such further actions as the bank might be advised.

36. The Liquidator is to retain his costs and charges in the first instance from out of the assets in his hands.

37. Certified for two counsel.

Hazra, J.

I agree.

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