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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 ..... he questions that arose for decision before the learned Judge, on this application. The learned Attorney-General frankly conceded the same. We have been told that there has been some application for contempt in the Court on the basis of the alleged suppression. We do not, therefore, wish to say anything relating to that matter which may have any bearing on the result of those proceedings. Appeal dismissed. - Civil Appeal No. 313 of 1955 - - - Dated:- 9-5-1956 - BOSE, VIVIAN JAGANNADHADAS, B. SINHA AND BHUVNESHWAR P., JJ. For the Appellant : J. B. Dadachanji. and Rameshwar Nath For the Respondent : M. C. Setalvad, Attorney-General for India and Ratanlal Chowla JUDGMENT JAGANNADHADAS J.- This is an appeal by special leave against an order of the High Court of Punjab dated the 12th May, 1955, in the following circumstances. The appellant was a resident of Lahore who came over to India in or about November, 1947, and took up residence at Banaras as a displaced person. He had, prior to the 15th August, 1947, a fixed deposit of Rs. 1,00,000 in the Lahore Branch of the Simla Banking and Industrial Co. Ltd. (hereinafter referred to as the Bank) which had its head-of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th January, 1953, the appellant filed an application before the Tribunal for execution of the decree and it was numbered as Execution Case No. 8 of 1953. It appears that on or about the 27th January, 1953, one Mr. D. D. Dhawan was appointed by the Punjab High Court as a Provisional Liquidator of the Bank. On the application of certain petitioning creditors in the winding up proceedings, the High Court passed another order under section 171 of the Indian Companies Act on the 30th January, 1953, staying execution of the decree against the Bank obtained by the appellant. This order also does not appear to have been communicated to the Tribunal by the Court. But the Tribunal was informed generally about the situation by a letter of the Provisional Liquidator dated the 13th March, 1953. Thereby, the attention of the Tribunal was invited to section 171 of the Indian Companies Act which enacted that pending proceedings could not be proceeded with except with the leave of the Court. The Tribunal was accordingly requested by this letter of the Liquidator to stay further proceedings before it in Case No. I of 1952. In view of this intimation, the Tribunal passed an order dated the 20th March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant filed an application for execution before the Bombay High Court (Application No. 123 of 1954) and asked for attachment and sale of the right, title and interest of the Bank in certain shares and securities belonging to the Bank and lying with the Central Bank of India Ltd., Bombay subject to the charge if any on the said Bank. The attachment was ordered on the 18th June, 1954 and was affected on or about the 19th June, 1954. At this stage the Official Liquidator obtained an order on the 26th June, 1954, from the Punjab High Court purporting to be one under section 45-C of the Banking Companies Act, transferring from the Court of the Banaras Tribunal, the proceedings before it for execution of the decree in Case No. 1 of 1952, obtained. against the Bank by the appellant. It would appear that the Tribunal, on receipt of this order, informed the High Court by letter dated the 14th July, 1954, that the execution proceedings had already been transferred to the High Court of Bombay and that no proceedings relating to the execution case were at the time pending before it. Thereafter the Liquidator made an application dated the 28th October, 1954, to the Punjab High Court for setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is against this order that the present appeal has been brought. Both the above contentions have been strenuously urged before us on behalf of the appellant and equally strenuously opposed on behalf of the Bank. The learned Attorney-General for the Bank placed reliance on section 232 of the Indian Companies Act at the forefront of his argument and pointed out that under the said section no attachment could have been made without leave of the Court when the Bank was in the process of being wound up by order of the Court. On the other side it has been suggested that neither section 171 nor section 232 of the Indian Companies Act are applicable to these proceedings in view of the Banking Companies Act as amended in 1953. This suggestion,proceeds on a misconception and ignores section 2 of the Banking Companies Act which specifically provides that the provisions of the Act shall be in addition to and not in derogation of the Indian Companies Act as expressly provided. Hence no leave under section 232 of the Indian Companies Act having been obtained, this might have been enough to dispose of the case against the appellant if the order of attachment had been set aside by the Bombay H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, whether such claim or question has arisen or arises or such application has been made or is made before or after the date of the order for the winding up of the banking company or before or after the commencement of the Banking Companies (Amendment) Act, 1953". There has been some faint argument before us that the questions that arise in execution in this case and particularly the question relating to attachment which has been effected by the Bombay High Court, are not questions which fall' within the scope of section 45-B. In our opinion this contention is so obviously untenable, in view of the very wide and comprehensive language of the section that, it requires no more than to be mentioned and rejected. If, therefore, the proceeding to execute the decree obtained by the appellant in this case and the claims and matters which must necessarily arise in the course of that execution fall within the scope of section 45-B, the execution proceeding in this case would prima facie be within the exclusive jurisdiction of the High Court under section 45-B subject to the two questions that have been raised in the case which are (1) whether there is anything in the Displaced Persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 28 of the Displaced Persons (Debts Adjustment) Act the jurisdiction to execute the Tribunal's decree is in the Tribunal. But it is equally clear that the jurisdiction to decide any of the claims which must necessarily arise in the execution of the decree is vested in the High Court by virtue of section 45-B of the Banking Companies Act. Each of the Acts has a specific provision, section 3 in the Displaced Persons (Debts Adjustment) Act and section 45-A in the Banking Companies Act, which clearly indicates that the relevant provision, if applicable, would have overriding effect as against all other laws in this behalf. Each being a special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case. In support therefore of the overriding effect of the Displaced Persons (Debts Adjustment) Act of 1951 as against section 45-B of the Banking Companies Act, learned counsel for the appellant called in aid the rule that a later Act overrides an earlier one. (See Craies on Statute Law, pages 337 and 338). He urged that the Banking Companies (Amendment) Act of 1953 should be treated as part of the 1949 Banking Companies Act and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the latter, notwithstanding that the principal Act was defined as meaning "Act of 1950". It was pointed out that the phrases "principal Act" and "Act of 1950" have to be understood after the amendment as necessarily meaning the 1950 Act as amended, i.e., which was to expire on the 1st October, 1952. In the present case what we are concerned with is not the meaning of any particular phrase or provision of the Act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the Act. For such a purpose the amendment cannot obviously be treated as having been part of the original Act itself so as to enable the doctrine to be called in aid that a later Act overrides an earlier Act. On the other hand, if the rule as to the later Act overriding an earlier Act is to be applied to the present case, it is the Banking Companies (Amendment) Act, 1953,. that must be treated as the later Act and held to override the provisions of the earlier Displaced Persons (Debts Adjustment) Act, 1951. It has been pointed out, however, that, section 13 of the Displaced Persons (Debts Adjustment) Act, uses the phrase "notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for relief and rehabilitation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. It is by and large a measure for the rehabilitation of displaced debtors. Notwithstanding that both the Acts are important beneficial measures, each in its own way, there are certain relevant differences to be observed. -The first main difference which is noticeable is that the provisions in the Displaced Persons (Debts Adjustment) Act are in a large measure enabling and not exclusive. There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfied with the reliefs which an ordinary civil court can give him in the normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction over the place where he resides, i.e., a place more convenient 'to him than if be had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises. There may also be a few other minor facilities. But what is necessary to notice is that the overriding provision of the Banking Companies Act, so far as a displaced creditor is concerned, is substantially only as regards jurisdiction. Section 45-A thereof, while providing that the provisions of Part III-A and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force, specifically provides that "the provisions of any such law in so far as the same are not varied by or inconsistent with, the provisions of that part or rules made thereunder, shall apply to all proceedings under that Part". Therefore, in the present case the overriding effect of section 45-B of the Banking Companies Act deprives him only of the facility of pursuing his execution in the jurisdiction of the Tribunal. But there is no reason why he should not get the benefit of other provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been specified as the Tribunal for the purposes of this Act to execute any decree or order passed by it as the Tribunal in the same manner as it could have done if it were a decree or order passed by it as a civil court". It is quite clear on the wording of this section that it is a civil court when it executes the decree, whatever may be its status when it passed the decree as a Tribunal. There is, therefore, no substance in this argument. Now coming to the question whether there has been a valid transfer of the execution proceedings to the Punjab High Court, there can be no doubt that the execution proceeding filed by the appellant before the Tribunal on the 6th January,'1953, continued to remain pending by the date when the Banking Companies (Amendment) Act, 1953, came into operation. This appears from the subsequent applications dated the 16th March, 1953, and the 17th February, 1954, which always relied on the earlier application of the 6th January, 1953, as the main pending application. This application was, therefore, a pending application for the purposes of section 45-C of the Banking Companies Act. The jurisdiction of the Punjab High Court with reference to this e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was in fact an order of transfer made by the Punjab High Court specifically of this execution proceeding with which we are concerned admits of no doubt as a fact. This is also admitted by the appellant in his application for special leave. The order itself is not before us nor are the exact circumstances under which this order came to be made, clearly on the record. So far as one can gather from the papers before us the position seems to be this. When the appellant filed his application to the Tribunal on the 17th February, 1954 (by which he asked that its order dated the 20th March, 1953, staying execution proceedings should be vacated for reasons shown therein) notice to show cause against it and for appearance therefor on the 24th April, 1954, was sent to the Official Liquidator by the Tribunal. The Official Liquidator not having appeared on that date, the Tribunal, as already stated, passed the order as prayed for on the 24th April 1954, transferring the execution to the Bombay High Court. It may be mentioned at this stage that an argument has been advanced that the Liquidator, not having appeared on notice, can no longer challenge the validity of the continuance of the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Liquidator dated the 19th March, 1954, are before us. We do not know the exact terms in which those orders were made and the reason why no specific order of transfer was made on the first report and why an additional order of transfer was made-as appears-so late as on the 25th June, 1954. In any case the argument on behalf of the appellant on this part of the case seems to be based on a misapprehension of the facts. If, as appears, the order of the 25th June, 1954, was made with reference to the letter of the Liquidator dated the 19th March, 1954, -a fact which appears ears to be admitted by the appellant in para 16 of his application for leave to appeal to this Court-and what is called supplementary report dated the 25th June, 1954, was nothing more than bringing additional facts to the notice of the Court by way of the history of the execution proceeding, there appears to be no foundation in fact for the contention that the order was made on a report filed beyond three months provided under section 45-C(2) of the Banking Companies Act. Sub-section (2) of section 45-C provides that "the Official Liquidator shall, within three months from the date of the winding up order or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds have not been properly placed before us. We have been asked to send for all the relevant records in order to ascertain the facts correctly or to give an opportunity for the purpose. We do not think it right to do so in the circumstances of this case. It is necessary to point out, as admitted by the appellant in his application for special leave that there has been an application to this Court dated the 16th October, 1954, for the grant of special leave specifically as against the order of transfer of the Punjab High Court made on the 25th June, 1954, but that application 'Was rejected. It has been suggested that while so rejecting, this Court left the matter open. There is nothing to substantiate it. Therefore, an argument as to the invalidity of the order of transfer cannot be entertained at this stage. For all the above reasons we are satisfied that the view taken by the High Court that it bad exclusive jurisdiction in respect of the present matter and that there was a valid transfer to itself by its order dated the 25th June, 1954, is correct. In the proceedings before the High Court a good deal has been made as to the alleged suppression of material facts by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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