B K Mukherjea, J - (1.) This rule was obtained by the Bhowanipur Banking Corporation aginst two orders of the Subordinate Judge, First Court, Alipur directing the petitioner to deposit in Court the entire amount held by it in its current account as receiver to the estate of the opposite parties. The material facts are not in controversy and may be shortly stated as follows : The opposite parties are all members of the Addy family of Chetla. One of them, viz., opposite party No. 1 instituted a suit for partition in the Court of the First Subordinate Judge at Alipur against his other co-sharers and this suit was registered as T.S. No. 55 of 1937 of that Court. On 18th September 1937, the petitioner who was and is a creditor to the Addys for a considerable sum of money was appointed a receiver to the joint estate of the Addys pending the hearing of the partition suit. By an order of the Court dated 17 April 1939 it was directed that all realisations made by the receiver from the estate of the Addys, with the exception of certain sums of money that were necessary to meet the immediate expenses, were to be kept in the current account of the bank and disbursements were to be made in accordance with the directions which the Court might give from time to time. The balance lying in the said account to the credit of the Addys estate on 6 May 1942 was Rs. 69,926-7-6. On the afternoon of 6 May 1942 the bank which was in financial difficulties from sometime past temporarily suspended payment to its depositors until further orders. On 8 May following, the opposite party No. 2 made an application to the Court for a direction on the receiver to deposit all monies, belonging to the Addys estate which was held by it, either in the Government Treasury or in some other safe place. The Court called for a report from the receiver which was submitted on 11 May 1942. On the same date the petitioner Bank filed an application in the original side of this Court under Section 153, Companies Act, with a proposal for composition with its creditors. That application was admitted on that very date and orders were passed for holding the meetings of the share-holders and depositors for the purpose of approval of the scheme. On 13 May 1942 the Bank reported to the Court that as it had already made an application under Section 153, Companies Act, and the matter was fixed for hearing on 26 June next it was not possible for it to bring into Court the money lying in its current account to the credit of the Addys estate. The Court on hearing all the parties made an order on 18 May 1942 directing the petitioner to deposit all monies belonging to the Addys estate either in some Government Treasury by challan or in the Reserve Bank of India, Calcutta, within a week from that date. It is said that after this order was passed the Supervisor who was managing the estate under the receiver and who was also one of the directors of the Bank, wrote a formal letter to the Bank requesting it to pay the sum of Rs. 69,926 land annas odd mentioned above. To this the Accountant of the Bank replied by saying that till the final determination of the proceedings under Section 153, Companies Act, the Bank was not legally competent to make any preferential payment to any of its creditors. This matter was reported to the Court and the Subordinate Judge by his order dated 22nd May 1942, confirmed the previous order made by him on 18 May 1942. The receiver was directed to deposit the money either in the Government Treasury or in the Imperial or Central Bank of India within the time already fixed failing which the premises where the Bank holds its office was directed to be attached and sold. It is the propriety of this order that has been challenged before us in this rule.
(2.) Mr. Sushil Ch. Sen who appears in support of the rule has contended before us that although the monies realised by the Bank as receiver, from the estate of the Addys, and held by it would ordinarily remain the monies of the Addys, yet under orders of the Court it opened a current account with itself, in its capacity as receiver the legal position was that the Bank qua receiver became its own creditor. The money deposited in the current account no longer remained the money of the Addys and it became the Bank's money which the Bank was only bound to repay in accordance with the usual terms under which it held the depositor's money. If therefore the Bank embarked upon a scheme of composition with its creditors under Section 153, Companies Act, and the scheme was approved by this Court the receiver to the Addys estate would be in the same position as any other creditor to the Bank and would be bound by the scheme. It is true that at the date when the Subordinate Judge made the order, the meeting of the depositors was not yet held but as the Bank had already started a proceeding under Section 153, Companies Act, it could not very well frustrate the scheme by giving preference to one of the creditors. It is contended that in these circumstances the receiver is legally incompetent to withdraw any money from the Bank and it can only recover the money in terms of the scheme as might be finally sanctioned.
(3.) Dr. Basak who appears for the opposite party has argued on the other hand that whatever the position might have been if the Bank as receiver had opened a current account with another Bank and that Bank had entered into a composition with its creditors under the Companies Act, the position was quite different when the Bank opened an account with itself. It is said that as monies were obtained by the Bank in its capacity as a receiver to the Addys estate, then so long as they were retained by it they would remain the money of the Addys estate in its hand and it was immaterial whether it was kept in its current account or not or in any other manner. Dr. Basak's contention substantially is that the money would not become the assets of the Bank and would not be divisible among its creditors in the event of a winding up proceedings. If the Bank wants to enter into a composition with its creditors it should frame a scheme on the footing that this sum of money does not form part of its assets.;