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TMI Blog1956 (5) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 4,00,000 which is alleged to have been due from the appellant to the Bank in his cash-credit account and which the appellant disputed and denied. On the 7th November, 1951, the Displaced Persons (Debts Adjustment) Act, 1951 (LXX of 1951) was passed providing certain facilities and reliefs to displaced debtors and displaced creditors. Section 4 of that Act empowered the State Government to specify any civil court or class of civil courts, As the Tribunals having authority to exercise jurisdiction under the Act for areas to be defined therein. Section 13 of the Act enabled a displaced creditor claiming a debt from any person who is not a displaced person to make an application for recovery thereof to the Tribunal having local jurisdiction in the place where the said creditor resides, and provided for the purpose a special limitation of one year from the date when the Act came into force. Admittedly the appellant is a displaced person, and the Bank is not a displaced Bank, within the meaning of those expressions as defined in the said Act. Taking advantage of these provisions, the appellant filed on or about the 24th April, 1952, an application (Case No. I of 1952) to the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree of the Tribunal obtained by the appellant against the Bank. That appeal is said to be still pending. On the 24th September, 1953, the winding up of the Bank was finally ordered by the Company Judge and the Provisional Liquidator was appointed as the Official Liquidator for the purpose. It is said that as against this order of a single Judge, there is a Bench appeal now pending in the High Court of Punjab. At this stage the Banking Companies (Amendment) Ordinance, 1953, (Ordinance No. 4 of 1953), was promulgated on the 24th October, 1953. This was repealed and substituted, on the 30th December, 1953, by the Banking Companies (Amendment) Act, 1953 (LII of 1953). On the 17th February, 1954, the appellant filed a further application before the Tribunal asking that the execution case filed before the Tribunal on the 6th January, 1953, which was stayed in view of the letter of the Liquidator dated the 13th March, 1953, should now be proceeded with having regard to the various reasons set out in that application. Curiously enough two of the reasons alleged were (1) that section 171 of the Indian Companies Act was overridden and varied by section 45-C of the Banking Companies (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made are- (1)That the order of the Tribunal at Banaras in execution Case No. 8 of 1953, transferring the decree for execution to the Bombay High Court more than six months after the passing of the winding up order, without obtaining leave from the Punjab High Court,was null and void. (2)That the proceedings taken in execution against the Bank in the Bombay High Court were also null and void in view of sections 171 and 232 of the Indian Companies Act. (3)That in view of the Banking Companies (Amendment) Act, 1953, it is only the Punjab High Court that has exclusive jurisdiction to entertain and decide all claims between the Bank and the appellant and to deal with the execution proceedings initiated by the appellant against the Bank. (4)That the execution proceeding was in fact transferred by the Punjab High Court to itself by its order dated the 25th June, 1954, and all questions arising therefrom have to be dealt with and disposed of by the Punjab High Court itself. The appellant contested this application in the Punjab High Court on various grounds. The main contentions were(1)That the provisions of the Banking Companies Act could not override the provisions of the Displaced P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court or to declare it to be void. That jurisdiction can only be supported on the view, that exclusive jurisdiction over the matter was vested in the Punjab High Court, under the Banking Companies Act, and that a valid order of transfer of the execution proceeding to the said Court had been made in exercise of the powers under that Act. These questions have, therefore, to be dealt with. On the facts above stated one matter is clear, viz., that the attempt of the appellant is to realise the amount due to him under the decree by getting at the assets of the Bank which is under liquidation ignoring the purported adjustment of the deposit made by the Bank towards its alleged dues from him under his cash-credit account. His proceeding to execute the decree by attachment is in substance an attempt to constitutes himself an independent preferential creditor. So far as the decree is concerned, we wish to say nothing about its validity or otherwise since the matter is pending in appeal before the Allahabad High Court. What we are concerned with now is the proceeding in execution of that decree and the appellant's attempt to get at the assets of the Bank in satisfaction ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been any valid order under section 45-C of the Banking Companies Act by the Punjab High Court transferring the pending execution proceeding to itself. So far as the first of the above questions is concerned, learned counsel for the appellant relies on sections 3 and 28 of the Displaced Persons (Debts Adjustment) Act, 1951. Section 28 declares that the civil court which passed the decree as a Tribunal shall be competent to execute it. Section 3 runs as follows: "3. Overriding effect of Act, rules and orders:Save as otherwise expressly provided in this Act, the pro-visions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any decree or order of a court, or in any contract between the parties". On the strength of these sections learned counsel for the appellant argues that the jurisdiction, which the Tribunal has under section 28 for executing the decree must prevail over the jurisdiction of the High Court in respect of this matter under section 45-B of the Banking Companies Act. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t page 687 which is as follows: "The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a, part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all". Now there is no question about the correctness of this dictum. But it appears to us that it has no application to this case. It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended 'part or in the amended part. But this is not the same thing as saying that the amendment itself must be taken to have been in exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct if in operation when the overriding effect has to be determined. But it is to be noticed that section 45-A of the Banking Companies Act has also exactly the same phrase. What the connotation of the phrase "'for-the time being" is and which is to prevail when there are two provisions like the above each containing the same phrase, ate questions which are not free fromdifficulty. It ;Is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein. Now so far as the Banking Companies Act is concerned its purpose is clearly, as stated in the heading of Part III-A, for speedy disposal of winding up proceedings. It is a permanent statutory measure which is meant to impart speedy stability to the financial credit structure in the country in so far as it may be effected by banks under liquidation. It was pointed out in Dhirendra Chandra Pal v. Associated Bank of Tripura Ltd.( [1965] 1 S.C.R. 1098) that the pre-existing law relating to the winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isplaced debtors and applications by displaced creditors against persons who are not displaced persons. So far as the applications by displaced debtors are concerned, section 15 in terms provides for certain consequences arising, when the application is made to the Tribunal by a displaced debtor under section 3 or section 5(2), i.e., stay of all pending proceedings, the cessation of effect of any interim orders or attachments, etc. and a bar to the institution of fresh proceedings and so forth. But the terms of section 13 relating to the entertainment of an execution proceeding by the said Tribunal on a decree so obtained, do not appear to bring about even the kind of consequences which section 15 contemplates as regards applications by displaced debtors. Section 13 is, in terms, only an enabling section and section 28 merely says that "it shall be competent for the civil court to execute the decree passed by it as a Tribunal". They are not couched in terms vesting exclusive jurisdiction in the Tribunal. Whatever, therefore, may be the inter se, position, in a given case, between the provisions of the Banking Companies Act and the provisions of the Displaced Persons (Debts Adjustme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above considerations and the wide and comprehensive language of sections 45-A and 45-B of the Banking Companies Act, we are clear that a proceeding to execute the decree obtained by the appellant from the Tribunal against the Bank in Case No. I of 1952 and all other incidental matters arising therefrom such as attachment and so forth are matters within the exclusive jurisdiction of the Punjab High Court subject to the provisions of section 45-C of the Banking Companies Act as regards pending matters. This leads us to the question whether in terms of section 45-C there has been a valid transfer of the execution proceeding to the Punjab High Court. Before dealing with this question it is necessary to notice the argument that section 45-C of the Banking Companies Act has no application -at all to a proceeding pending before the Tribunal. The argument is that section 45-C applies only to a proceeding pending in any other Court immediately before the commencement of the Banking Companies (Amendment) Act. It is urged that the Tribunal under the Displaced Persons (Debts Adjustment) Act is not a Court. In support thereof the judgment of one of the learned Judges in Parkash Textile Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 45-C. This section contemplates, in respect of pending proceedings that (a) the Official Liquidator is to make a report to the High Court concerned within the time specified in sub-section (2) thereof, (b) the High Court is to consider which out of these pending proceedings it should transfer to itself, and (c) the High Court should pass orders accordingly. It further provides by sub-section (4) thereof that as regards such of the pending proceedings in respect of which no such order of transfer has been made the said proceeding shall continue in the Court in which it is pending. It is with reference to these provisions that on the 23rd November, 1953, the Official Liquidator appears to have submitted a report to the Punjab High Court, requesting that certain proceedings mentioned in lists A and B attached to the said report should be transferred to the High Court under section 45-C(3). List A pertains to suits and List B to applications under the Displaced Persons 'Debts Adjustment) Act, 1951. It is pointed out that list B which shows an application before the Tribunal under section 19 of the Displaced Persons (Debts Adjustment) Act, does not show the execution application u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction depending on the validity of transfer made by the High Court under statutory power. The argument is without substance. To resume the narrative, the Official Liquidator on receiving notice, addressed a letter dated the 19th March, 1954, to the Company Judge of the Punjab High Court mentioning the fact that he, received a notice from the Banaras Tribunal to appear and show cause on the 24th April, 1954. He mentioned therein his doubt as to the jurisdiction of the Tribupal to entertain the application and requested that in order to avoid inconvenience and expenditure an immediate transfer of the execution case together with the appellant's application to the Tribunal for vacating the stay order should be made by the High Court in exercise of the powers conferred on it by section 45-C of the Act. On this the learned Judge appears to have passed an order dated the 22nd March, 1954, issuing notice to the appellant for appearance on the 2nd April, 1954. This appears to have been adjourned from time to time and it would appear that on the 25th June, 1954, to which date the matter stood adjourned, the Liquidator addressed another letter to the Company Judge, which is referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow, submit to the High Court a report containing a list of all such pending proceedings together with particulars thereof". The letter of the Official Liquidator dated the 19th March, 1954, is within three months of the commencement of the Banking Companies (Amendment) Act, 1953, which came into force on the 30th December, 1953, and there is nothing in subsection (2) of section 45-C that two or more successive reports may not be made within the prescribed period of three months. It appears also from the papers above referred to that notice was issued to the appellant with reference to this letter of the 19th March, 1954, of the Liquidator to transfer the execution application to itself. It appears to us, therefore, from such record as is before us, that the contention of the appellant raising objection to the validity of the order of transfer is untenable on the facts.' Nor, are we satisfied that even if the facts as to how the order of transfer dated the 25th June, 1954, came to be made are shown to be otherwise than above stated, there is any reason to think that sections 45-C(2), (3) and (4) are to be construed so as to make the power of the Court to transfer dependent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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