MALLI SELVA IYER Vs. MADURA MERCANTILE BANK LIMITED

JUDGEMENT

(1.) THESE revision petitions arise form the orders of the subordinate Judge of Madurai in E.A. Nos. 890 and 915 of 1956 rejection tow petitions filed under Order XXI, rule 58, of the civil Procedure Code to raise the attachment before judgment effected on the property in suit and in the petitions In O.S., No. 76 of 1949 in the file of Sub-Court, Madurai the Madura Mercantile Bank ltd., obtained a decree for the large sum of money against one Rajagopala Iyer Immediately after the filing of the sit the bank obtained an order for attachment before judgment of certain propertied belonging to the debtor. subsequently the bank was faced with financial difficulties. In O.P. No. 126 of 1953 the bank was directed to be wound up by an order of this court dated July 22, 1953 The official liquidator who thereafter took charge of the asset of the bank filed E.P. No.71 of 1956 in Sib-Court, Madurai, for execution of the decree in O.S. No. 76 of 1949. the petitioners claiming that they had acquired title to the property attached in a court sale in execution of a mortgage decree obtained Rajagopal iyer filed applications in the executing court for raising attachment on the ground that they were entitled to possession of the propertied in their own right. The claims were resisted by the official liquidator of the bank inter alia on the ground that the petitions filed under order XXI rule 58, of the CODE OF CIVIL PROCEDURE, 1908 could not be entertained by the executing court by reason of section 45B of the Banking companies Act (X of 1949).as only the High Court would have jurisdiction to entertain all claims against a bank in liquidation. That objection found favour with the learned Subordinate Judge.

(2.) THE claimants challenge the correctness of the view taken by the lower court in these petitionsthe question raised depend on a proper construction of section 45B of the Banking Companies Act which runs as follows

(3.) RELIANCE was placed for the position of the observations of Raghava Rao J. in palghat Wariar Bank Ltd. v. Padmanabhan, where the learned judge, whole considering whether leave of the court under section 171 of the India Companies Act was necessary for the filing of a claim petition against an attachment effected in execution of a decree in factor of the bank in liquidation, held that such a petition not being a legal proceeding would not require pervious permission of the company court. Section 171 of the Companies At provides that no legal proceedings shall commence against a company except by leave of court and that too subject to such conditions as the court may deem fit to impose, Section 45B of the Banking Companies Act is couched in wider terms that section 171 of the Companies Act. In Dhirendra Chandra pal v. Associate Bank of Tripura, it was held that section 45B was not confined to claims for recovery of money or property alone but would comprise all sorts of claims which relate to or arise in the course of the winding up. In Shri Ram Narain v. Simla Banking & Industrial Co the Supreme Court adverted to the wide terms of section 45B of the Banking Companies Act and held that proceedings taken to execute a decree obtained by a creditor of the bank and all incidental matters arising therefrom like attachment, etc. would fall within the exclusive jurisdiction of the court in charge of the winding up of the banking company. It therefore, becomes necessary to consider that nature of the claim proceedings. whether it can be said to amount to a proceeding taken by or against the bank, or whether it is one merely by way or defense to or incidental to a proceedings taken by the bank. In Hemanga Coomar Mookherjee v. Chakravarthi the Calcutta High Court held that c claim made under order XXI, rule 58, of the Code of Civil procedure by a liquidator a banking company was one arising in the course of winding up of the company.