DHIRENDRA CHANDRA PAL Vs. ASSOCIATED BANK OF TRIPURA LIMITED

JUDGEMENT

(1.) This is an appeal, by leave of the High Court of Calcutta under Article 133(1) (c) of the Constitution, from its judgment in its appellate jurisdiction confirming that of a Single Judge of the Court. The point involved is a short one and arises on the following facts. The respondent before us, Associated Bank of Tripura Ltd., went into liquidation on the 19th December, 1949. A month prior to the liquidation, i.e., on the 19th November, 1949, the appellant before us and the Bank entered into an agreement whereby the appellant became a tenant of the Bank in respect of a certain parcel of land. One of the terms of the tenancyagreement was that the appellant should vacate the land demised on 24 hours notice. After the Bank went into liquidation the Liquidator served on the appellant on the 18th April, 1950, a notice terminating his tenancy and calling upon him to vacate the land and to hand over possession by the end of April, 1950. This not having been done, the Liquidator filed an application on the original side of the High Court under section 45-B of the Banking Companies Act for ejectment of the appellant and obtained an 'ex parte' decree against him on the 10th July, 1950. On the 28th August, 1950, the appellant applied for setting aside the 'ex parte' decree but the application was dismissed on the 7th September, 1950. Consequently the appellant filed the present suit on the 12th September, 1950, in the original side of the High Court, asking for a declaration that the 'ex parte' decree against him was made without jurisdiction and was a nullity and that he continued to be a tenant notwithstanding the said 'ex parte' decree. The plaint does not specifically mention the reason for claiming the decree to be without jurisdiction or nullity. But the point taker at the trial was that the Court had no power to deal with a question relating to the ejectment of the appellant from the demised land, in a summary proceeding initiated on an application but could pass the decree only on a suit regularly instituted. This contention was raised on the basis of a judgment of the Calcutta High Court given on the 24th August, 1950, that in respect of such a relief under section 45-B a summary proceeding is not maintainable but that a suit has to be filed. This decision has since been reported in -'Sree Bank Ltd. vs. P. C. Mukherjee', 55 Cal WN 400 (A). The learned trial Judge before whom the present suit came up was of the opinion that though the 'ex parte' decree for ejectment was obtained on a wrong proceeding, there was on inherent lack of jurisdiction in the Court and that the fact of the decree having been obtained in a wrong proceeding did not render it a nullity. This view of the learned Judge was affirmed by the Appellate Bench.

(2.) It has not been disputed before us that the relief by way of ejectment at the appellant from the land demised is one which would fall within the scope of section 45-B of the Banking Companies Act and that the Liquidator could obtain the said relief by an appropriate proceeding in the High Court. Indeed, the learned appellate Judges specifically held that the Court had by virtue of section 45-B, jurisdiction over the subject-matter of the dispute and this view has not been challenged having regard to the wide and comprehensive language of the section. But what is urged is that the Court having followed the view taken in the 'Sree Bank Case (A), (supra) (whose correctness was not challenged before it) that the appropriate proceeding to obtain such a relief was only a suit, it should have, consistently therewith, held the decree obtained on a mere application to be invalid. In the Court below the question as to whether the decree obtained on a wrong proceeding was one so wholly without jurisdiction as to be a nullity or whether it was vitiated only by a mere irregularity in the made of obtaining the relief, and hence not open to attack in collateral proceedings was the subject-matter of elaborate consideration. It appears to us, however, that it would be more satisfactory to consider and decide whether the basic assumption which gave rise to this argument, viz. that the appropriate proceeding under section 45-B was only a suit and not an application, is correct. It is necessary for this purpose to notice the relevant sections. Section 45-A of the Banking Companies Act, 1949, as amended by Act XX of 1950 defines 'Court' for the purposes of Part III and Part III-A of the Act as "the High Court exercising jurisdiction in the place where the registered office of the Banking Company concerned, which is being wound up, is situated" The said section also provides that

(3.) In the 'Sree Bank Case (A) (supra)', the question that arose for direct consideration was one of limitation. But in considering it and when pressed with the argument that, if the appropriate proceeding was by way of an application and not a suit, difficulties might arise as to the question of limitation the learned Judges felt it unnecessary to consider whether or not the Limitation Act applies to the applications under S. 45-B and if so what would be the period which would govern such applications. They proceeded to decide the particular case before them, viz. a case relating to a debt due, to the Bank, on the view that