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TMI Blog1952 (8) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly described in paragraphs 15 and 16 of the petition used in support of this summons. This order is asked as against Sm. Surabala Debi, Dwijendra Nath Chatterjee, Sm. Provarani Chatterjee, Satyendra Nath Chatterjee and Birendra Nath Chatterjee. The grounds alleged by the applicant to have this mode of execution by receiver are expeditious sale, and avoidance of separate and independent proceedings in different courts which will mean more expense to the banking company already in liquidation. These grounds are set out in paragraphs 19, 20 and 21 of the petition. On behalf of the respondents there is an affidavit by Satyendra Nath Chatterjee. The main points raised in that affidavit are first, that he has no knowledge of the order of the 4th December, 1951, and, secondly, that the sum is not payable by him. The defence raised is that the Dhakuria property No. 14, Station Road, is a debuttar property dedicated to Deity Lakshmi Narayan and does not belong to Sm; Surabala Debi and other persons against whom a receiver is sought in tabular statement. Lastly, the defence is taken that the application is not maintainable and is misconceived. The defences about lack of knowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who has very ably argued this case before me, had to contend against this decision, because of the following considerations. The allegations made in paragraphs 19, 20 and 21 of the petition be very fairly and readily conceded as not sufficient allegations for departing from the ordinary mode of execution by attachment and sale of immoveable properties and for adopting the extraordinary remedy of execution by the appointment of a receiver. For if in every case the properties being in the district it could be said that ordinary processes of attachment and sale should not be resorted to in the District Courts within whose jurisdiction these properties are situate on the ground of expense and delay then as a matter of course ordinary processes of execution would be supplanted by the mere consideration of the situs of these properties. I do not conceive that to be the law But the other argument that Mr. Chaudhuri has advanced on this branch of the law requires greater consideration. It is this. He says that under the Banking Companies (Amendment) Act, 1960, this court is made the only court with exclusive jurisdiction to deal with matters mentioned in sections 45A and 45B. The arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll that this section 45H does is to say that they will be enforceable in the same manner as such decrees and it does no more than what section 199 of the Indian Companies Act does in enabling orders under the Indian Companies Act to be enforced as decrees. By making the "same manner" of enforcement available to orders under the Banking Companies Act, I should have thought section 45H meant such manner as delivery, sale, receiver, arrest and detention in prison and such other manner as the nature of relief may require and as are provided in section 61 of the Civil Procedure Code for execution of decrees. But it does not to my mind re-create jurisdiction in the court, may be a transferee court for execution, for dealing with a matter in respect of which the statute has expressly and manifestly taken away jurisdiction under sections 45A and 45B of the Banking Companies Act. If it were otherwise, most illogical and inconsistent situations appear to arise. An execution case relating to a banking company in liquidation pending or originally arising in any court other than the High Court will be beyond the jurisdiction of such court to determine. But by the decision in Bharati Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 42 of the Civil Procedure Code. Two grounds are stated towards the end of the judgment in Bharati Central Bank case one of costs and the other of machinery for execution. It is debatable whether the prospect of higher costs of execution or absence of machinery of execution should be used as arguments to influence the construction of the express words of this statute. The example given in the Bharati Central Bank case of the Allahabad High Court without having original jurisdiction, executing company orders by transferring them to District Courts for execution, is misleading because the Companies Act does not lay the embargo on other courts as sections 45A and 45B of the Banking Companies Act. If the Act is clear, costs and machinery of execution will have to be suitably devised by the court invested with jurisdiction under the Act. Mr. Chaudhuri has contended before me that a Special Bench decision under Chapter V of the Original Side Rules is not an Appellate Bench, but a bench of co-ordinate jurisdiction with the Original Side court and that if I am convinced that the Special Bench decision is wrong I should dissent from it. It is not necessary for me to adopt that cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution the principles of attachment and sale are basically local in their manifestations for obvious reasons of convenience and fairness alike. This court does not ordinarily appoint a receiver to sell properties which are outside the jurisdiction of this court. This court certainly has the power and jurisdiction to adopt that course. But the question is one of propriety and whether it is proper to do so in a particular case. I have no doubt in my mind that an enforcement order such as the one before me calling upon the contributory to pay is an order which is executable under section 199 of the Indian Companies Act and section 46H of the Banking Companies Act, 1949, as a decree under the Civil Procedure Code by attachment and sale in this case by this court. I am not satisfied that in this case the applicant has taken the matter out of the scope of ordinary methods of execution by attachment and sale and qualified himself to get a receiver by way of execution. For these reasons I will make no order on this application. Having regard to the fact that the money remains unpaid there will be no order for costs also in favour of the respondents. The liquidator however will retain his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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