AMITAVA DAS GUPTA Vs. NATH BANK LIMITED

JUDGEMENT

(1.) These appeals have been brought to this Court by certificate from a judgment of the Patna High Court.

(2.) The facts may be stated. The respondent-Nath Bank Limited -brought a money suit against the appellant, Amitava Das Gupta, and one Benoy Kumar Sen Gupta in the Patna Courts on March 3, 1949. The Bank, however, went into liquidation as a result of a petition filed by two of its creditors in March 1950, in the Calcutta High Court. The Reserve Bank of India was appointed the official liquidator of the said Bank. The Banking Companies (Amendment) Act 1950 received the assent of the President on March 15, 1950. Under Section 11 of the said Act where any proceeding for the winding up of a banking company or any other proceeding, whether civil or criminal which had arisen out of or in the course of such winding up, was pending in any Court immediately before the commencement of the Act it was to stand transferred to the Court which would have had jurisdiction to entertain such proceeding if the Act had been in force on the date on which the proceeding had commenced. By virtue of Section 11 the suit which was pending in the Patna Court was transferred to the Calcutta High Court. The records were accordingly transmitted to the Calcutta High Court where the suit was renumbered as Original Trial Suit No. 122 of 1951. After trial it was decreed against the appellant and the other defendant. The decree holder then applied for execution of the decree in the Calcutta High Court and prayed for attachment of a house in Patna. A precept was sent by the Calcutta High Court to the District Judge Patna followed by the transfer of decree to the Court of the District Judge for execution under Section 46 of the Code of Civil Procedure. The execution case was placed before a Subordinate Judge before whom a number of objections were raised. Two Miscellaneous cases arose out of the objections filed under Order 21 Rule 58 and Section 151 of the Code of Civil Procedure which were dismissed The appellant filed an application on June 3, l959 under Section 47 of the Code that the decree sought to be executed was null and void and was incapable of execution. He filed another objection alleging that the decree-holder had suppressed certain material facts. The learned Subordinate Judge held that the decree passed by the Calcutta High Court was null and void and it was barred by limitation when the execution was taken out. The matter was taken in appeal to the High Court

(3.) The High Court took the view that the registered office of Nath Bank Ltd., was situate in Calcutta and therefore the Calcutta High Court would be the Court where winding up proceeding could be started. Under Section 45-B of the Banking Companies Act, 1949, as amended by the Banking Companies (Amendment) Act, 1950, the High Court of Calcutta where the winding up proceedings were going on was competent to decide all claims of the company in liquidation Reliance was also placed on the amendment made by the Banking Companies Act tact 52 of 1953) which Incorporated Section 45-C with regard to the jurisdiction of the High Court to dispose of the suit. The claim of Nath Bank therefore, against the appellant and Benoy Sen Kumar Gupta was fully within the jurisdiction of the Calcutta High Court. An argument was raised on behalf of the judgment-debtors that after transfer of the suit to the Calcutta High Court it should have issued a notice to them of such transfer so that particular objections to the plaintiff's claim could be made there. Since no notice was issued to them they were precluded from prosecuting the suit properly in the Calcutta High Court. The learned judges of the Patna High Court were, however, of the view that the burden lay upon the judgment-debtors to establish that notice of the Original Trial Suit No. 122/51 had not been issued by the Calcutta High Court to them. The order sheet of the suit had not been brought on the record and in the absence of that document, it was said, the judgment-debtors could not raise any objection on the ground of want of notice. At any rate it was not considered necessary that a fresh notice be issued when an order had been passed by the Patna Court in the presence of the judgment-debtors transmitting the records to the Calcutta High Court.