PIONEER BANK LTD. Vs. MRS. GYAN KOER AND ANOTHER
LAWS(GAU)-1951-8-3
HIGH COURT OF GAUHATI
Decided on August 30,1951

Pioneer Bank Ltd. Appellant
VERSUS
Mrs. Gyan Koer And Another Respondents

JUDGEMENT

Thadani, J. - (1.) THIS is an application under the provisions of S. 115, Civil P.C., directed against an order, dated 11 -2 -1950, passed by the learned Subordinate Judge, U. A. D., by which he dismissed the petitioner's suit for default of Appearance.
(2.) THE petitioner bank brought a suit in 1947, being T. suit No. 16 of 1947, in the Court of the Subordinate Judge, Jorhat, against the defendants, two widows of the late Sardar Tara Singh, for the recovery of a sum of Rs. 18,405 -1 -3 by the sale of the properties mortgaged by their husband. After a series of adjournments, the suit was fixed for hearing on 11 -2 -1950. Meanwhile on 12 -7 -1949, the Calcutta High Court ordered a compulsory winding up of the petitioner bank and Mr. A.C. Ganguli, Barrister -at -law, was appointed Official Liquidator. It appears that the Directors of the petitioner bank failed to furnish the Official Liquidator with a statement of pending suits and proceedings by and against the petitioner bank. On receipt of certain papers from the Jorhat branch of the petitioner bank, the Liquidator came to know that a suit by the bank was pending in the Court of the Sub Judge, Jorhat, and that papers relating to the suit were with Mr. R. Hazarika, an Advocate of Jorhat. The Official Liquidator requested Mr. Hazarika to furnish him with all the particulars of the suit. On 16 -2 -1950, one Mr. S.C. Sarma informed the Liquidator that Mr. Hazarika had been appointed a Judge, and that the suit against Tara Sing's widows had come up for hearing on 11 -2 -1950, and was dismissed for default of appearance.
(3.) SOME two months after the Calcutta High Court had ordered the compulsory winding up of the petitioner bank, an Ordinance called the Banking Companies (Amendment) Ordinance, 1949 (XXIII [23] of 1949) was promulgated on 19.9.1949, S. 3 of which provided for automatic transfer of all proceedings to the winding up Court. The Ordinance of 1949 has been replaced by the Banking Companies (Amendment) Act 1950, S. 11 of which corresponds to S. 8 of the Ordinance and is in these terms : Where any proceeding for the winding up of a banking company or any other proceeding, whether Civil or Criminal, which has arisen out of or in the course of such winding up is pending in any Court immediately before the commencement of this Act, it shall stand transferred on such commencement to the Court which would have bad juried lotion to entertain such proceeding if this Act had been in force on the date on which the proceeding commenced, and the Court to which the proceeding stands so transferred shall dispose of the proceeding as if this Act and the amendments made thereby were applicable thereto. Mr. Ghose for the petitioner bank contends that in view of the provisions of S. 8 of the Ordinance which was in force on 11 -2 -1950, the date on which the suit was dismissed, the learned Subordinate Judge had no jurisdiction to pass an order of dismissal as the suit stood automatically transferred to the Calcutta High Court. We think the contention is sound and must prevail.;


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