NATH BANK LIMITED (IN LIQUIDATION) Vs. KSHETRA NATH DALAL AND ORS.

JUDGEMENT

(1.) This is an appeal by the Nath Bank Ltd. (In Liquidation) through its Court Liquidator against an order of Bachawat, J., dated July 16, 1954, rejecting the appellant's contention that under Sec. 45H of the Banking Companies Amendment Act it is not necessary for the appellant to adduce any evidence in the first instance and that it is for the Respondents to begin their case and to prove that they are not guilty of misfeasance. The facts o the case, which are not in dispute, are as follows:- On the 4th may, 1953, the Official Liquidator of the Bank took out a Master's summons for a misfeasance proceeding under Sec. 235, Indian Companies Act, against the Respondents praying for an order compelling the Respondents and each of them to reply or restore a total sum of Rs.2,19,59,612-7-8, or such other sum as the Court might fix, to the assets of the said Bank and for various other reliefs. On Aug. 27, 1953, S. R. Das Gupta, J., made an order to the effect that the matter should be set down for trial on evidence. On Dec., 16, 1953, Bachawat, J., passed an order to the effect that for the purpose of shortening the trial, the parties agreed that copies of relevant documents relied upon by the petitioner should be annexed to a further affidavit to be affirmed by or on behalf of the petitioner and thereafter the order runs as follows:-

(2.) Then follows a long list of documents copies of which were permitted to be annexed to the affidavit. Towards the end of the order the learned Judge observes as follows:-

(3.) The effect of this order is to dispense with the formal proof of the documents enumerated therein subject to all questions as to their admissibility and relevancy. The additional affidavit annexing copies of documents intended to be relied upon by the Liquidator has not been printed in the paper book, but we are informed that two such affidavits were filed on the 24th April and the 4th June, 1954. In the meantime the Banking Companies Amendment Ordinance of 1953 came into operation on the 24th Oct., 1953, and the Ordinance was replaced by the Banking Companies Amendment Act of 1953 which received the assent of the President on the 30th Dec., 1953. The case was taken up for hearing by Bachawat, J., on July 14, 1954, when the Liquidator was called upon to adduce evidence in support of his case. At this stage the Liquidator raised a point to the effect that since he had made out a prima facie case against the Respondents it was for them to begin their case and that the Liquidator was entitled to an order for repayment against the Respondents under Sec. 45H of the Banking Companies Amendment Act of 1953 unless they proved that they were not guilty of misfeasance. Bachawat, J., by his order, dated July 15, 1954 has overruled that contention and against that order the Liquidator has filed this appeal.