A R SIVARAMAKRISHNA CHETTIAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS is a detor's insovency portion under Ss. 10, 14 and 15 of the Presidency towns Insovency Act for adjudication of the applicant. When the proceeding originally came up before the Master he passed an order directing the matter to be placed before the Insolvency Judge since the question of jurisdiction of the High court to entertain the application was raised by the Official Assignee which is not settled by any authoritative decision of this court. When the matter came up before the Insolvency Judge (one of us) it was found that there was a conflict between the view taken by Ramaswami, J. , in Thangia v. Hanuman Bank Ltd. , AIR 1958 Mad 403 following certain decisions of the Orissa High Court and the view taken by Ramachandra Iyer, J. , in Shenoy v. Rathunath, ILR 1959 Mad 715 regarding the scope and effect of Secs. 45-A and 45-B of the Indian Banking companies Act as amended in 1953 (hereinafter referred to as the Act ). Thereupon at the instance of one of us this petition has been referred to this bench.

(2.) THE petitioner was carrying on a business in Dindigul which failed and a creditor of the petitioner obtained a decree for money against the petitioner and got him arrested in execution of that decree. Thereupon the petitioner filed I. P. No. 5 of 1959 in the court of the Subordinate Judge, Dindigul.

(3.) ONE of the creditors of the petitioner is the Kannika Bank Ltd. , Dindigul, which is under liquidation by order of this court. The Official Liquidator of the Kannika bank raised an objection before the Subordinate Judge of Dindigul to the maintainability of the insolvency petition and the Subordinate Judge held that the insolvency proceeding could not be commenced without the leave of this court which laid charge of the winding up proceedings of the Kannika Bank and dismissed the insolvency petition. Thereupon the petitioner filed C. M. A. No. 45 of 1960 in the District Court, Madurai, against that order and that court also dismissed the appeal relying upon the decision of Ramaswami, J. , in AIR 1958 Mad 403. Against the order of the District Court, a civil miscellaneous second appeal has been filed by the petitioner in this court. He has also filed an application on the Original Side of this court asking leave of the company Judge to institute the insolvency proceedings in the court of the Subordinate Judge at Dindigul.