- (1.)THERE is a great deal of controversy about the maintainability of these four applications. Common questions of law and fact arise in all of them. They have been argued together, and I shall dispose them of by a single judgment as prayed by the learned counsel for the parties.
(2.)IN order to bring out the controversy in bold relief, I may first state those facts regarding applications Nos. 16 and 17 which are no longer in dispute. The Pareek commercial Bank Limited, respondent No. 1, hereinafter referred to as the Bank, was ordered to be wound up on July 31, 1952. Vastu Lal Pareek (respondent No. 2) was the Chairman of the Bank and orders were passed by this Court for the realisation of various sums of money from him. The Official Liquidator applied for execution of the Court's orders and the execution petitions were transferred by this Court to the Court of the District Judge of Bikaner on February 4, 1960. The district Judge attached certain properties on February 13, 1960 in execution of the decree, and claims or objections were filed by the present applicants under Order 21, Rule 58 of the Code of Civil Procedure. Rameshwarlal, Ishwarlal, Umesh chandra and Herendra Kumar, sons of Vastulal Pareek, filed one such claim or objection, while Smt. Moolidevi, the daughter of Vastulal Pareek, filed another claim or objection. The claims or objections were filed on the ground that the attached properties did not belong to Vastulal Pareek, but were the properties of the claimants or objectors. The claims or objections were however dismissed by the execution Court on December 17, 1960. The unsuccessful claimants or objectors then applied for leave of this Court to file suits under Order 21, Rule 63, civil P. C. on the ground that "complicated questions" were involved in the dispute which could not be adjudicated "without proper enquiry and trial except by way of a regular suit". This Court gave notice to the Official Liquidator and made an order on December 11, 1961, in similar terms, in both the cases as follows: "heard learned counsel for the parties. Permission is granted to file a suit under Order 21, Rule 63 of the Code of Civil Procedure. The claim petition has already been filed in the Court of District Judge Bikaner and it has been rejected. " thereupon two applications, which have now been renumbered as 16 and 17 of 1967, were filed the same day.
(3.)A dispute however arose about the Court fee payable on the applications. An order was made by this Court on April 19, 1962 for the payment of ad valorem court fee on the ground that the applicants had filed suits under Order 21, Rule 63 of the Code of Civil Procedure which were independant proceedings. Two months' time was allowed to make up the deficiency in the court fee. But an appeal was preferred against that order before a Division Bench. It was dismissed as premature on July 24, 1962 and the applicants were directed to argue before the company Judge whether their applications were in the nature of claims, and not suits, and were maintainable without the payment of ad valorem court fee. The matter therefore came before the Company Judge again on July 26, 1962. He rejected the plaints because the court fee was not paid in time, and observed that if the applicants thought that they had a remedy by way of an application under section 45n (2) of the Banking Companies Act, 1949 (hereinafter referred to as the Act), they were free to move fresh applications thereunder.