S.C.R.

SUPREME COURT REPORTS 603

SHRI RAM NARAIN v.

THE SIMLA BANKING & INDUSTRIAL CO.

LIMITED.

[VIVIAN BosE, JAGANNADHADAS and

B. P. SINHA JJ.]

Banking Oom.panies Act, 1949 (X of 1949) as amended by Act LII of 1958, ss. 45-A, 45-B, 45-0-Displaced Persons (Debts Adjustment) Act, 1951 (LXX of 1951), ss. 8, 28-0verriding effect as against all other laws-Pitrpose and policy of the two Acts-Tribunal under Act LXX of 1951-Whether a Oourt-Transfer of proceedings under s. 46-0 of the Banking Oompanies Act-Period of limitation.

The appellant, a displaced person, had a fixed deposit in the Lahore Branch of the respondent Bank which had its head-office at Simla, and he also had at the time a cash-credit account in the Bank.

As the Bank refused to pay the amount of fixed deposit on its maturity but adjusted it towards part payment of the amount said to be due from him, he filed an application to the Tribunal at Bans.rs.a under s. 4 of the Displaced Persons (Debts Adjustment) Act, 1951, claiming the amount of the fixed deposit as a debt due from the Bank. During the pendency of the application there were proceedings taken for winding up the Bank in the High Court of Punjab. On the 3rd January 1953 a decree was passed by the Tribunal and the appellant filed an application before it for execution of the decree, which, ultimately, was transferred to the Bombay High Court under the provisions of the Code of Civil Procedure.

The appellant's application before the Bombay High Court for the ,. attachment of the property belonging to the Bank and situate in Bombay was ordered on the 18th June 1954. On the 26th June 1954 the Official Liquidator of the B&nk obtained an order from the Punjab High Court purporting to be one under s. 45-C of the Banking Companies Act, transfening to itself from the Court of the Banaras Tribunal the proceedings before it for execution of the decree obtained against the Bank by the appellant, and subsequently the order of attachment passed by the Bombay High Court

was set aside by the High Court of Punjab on the ground that (i) the provisions of the Banking Companies Act as amended in 1953 had an overriding effect, and that exclusive jurisdiction was vested in the Punjab High Court notwithstanding anythin~ in the Displaced Persons (Debts Adjustment) Act, 1951 and (ii) there was a valid order of transfer to the Punjab High Court, of the execution proceedings taken by the appellant in respect of his decree. '.l'b11 appellanh appealed to the Supreme Court.

Held, ths.t (i) in view of the wide and comprehensive l&ngu11ge of as. 45-A and 45-B of the Banking Companies Act, 1949, as

1956 • May9

Shri Ram N attain

The Simla Bank ing and Industrial Co. Limited.

amended in 1953, the proceeding to execute the decree obtained by the appellant from the Tribunal against the Bank and all other incidental matters arising therefrom are within the exclusive jurisdic tion of the Punjab High Court;

(ii) whatever may be the inter se position between the provisions of the Banking Companies Act and those of the Displaced Persons (Debts Adjustment) Act in so far as such provisions relate to displaced debtors, the jurisdiction clearly and definitely vested in the High Court by the very specific and comprehensive wording of s. 45-B of the Banking il'.Jompanies Act cannot be said to be overridden or displaced by anything in the Displaced Persons (Debts Adjustment) Act, in so far as they relate to displaced creditors; {iii) the Tribunal which is to exercise the jurisdiction for executing the decree in question is a.

11court" within the meaning of a. 45-C of the Banking Companies 'Act, whatever may be its status when it passed the decree as a Tribunal;

(iv) having regard to the scheme and policy of ss. 45-B and 45-C of the Banking Companies Act, in respect of pending matters which have not been brought to the notice of the Court by the Liquidator within three months, there is nothing to prevent the Court exercising its power of transfer at suoh time when it is brought to the notice of the Court.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 313of1955.

Appeal by special leave from the judgment and order dated the 12th May 1955 of the Punjab High Court at Chandigarh in Liquidation Miscellaneous No. 72 of 1954.

J. B. Dadachanji and Rameshwar Nath, for the appellant.

M .. G. Setalvad, Attorney-General for India and Ratanlal Chawla, for the respondent.

1956. May 9. The Judgment of the Court was delivered. by

JAGANNADBADAS J.-This is an appeal by special leave against an order of the High Court of Punjab dated the 12th Ma.y, 1955, in the following circumstances.

The appellant was a. resident of Lahore who ca.me over to India. in or about November, 1947, and took up residence a.t Ba.nara.s as a displaced person. He

had, prior to the 15th August, 1947, a fixed neposit t9s6 of Rs. 1,00,000 in the Lahore Branch of the Simla Shri Ram Narain Banking and Industrial Co. Ltd. (hereinafter referred v. to as the Bank) which had its head-office at Simla. The Simla Bank- He had also at the time a cash-credit account in the ;,.g and Indttstn"al Bank. The fixed deposit matured in 1948. The Bank Co. Limited. did not pay the amount to the appellant in .spite f Jagan:;;;;, adasJ. repeated demands but seems to have adjusted it towards part payment of a sum of Rs. 4,00,000 which is alleged to have been due from the appellant to the Bank in his cash-credit account and which the appellant disputed and denied. On the 7th November, 1951, the Displaced Persons (Debts Adjustment) Act, 1951 (LXX of 1951) was passed providing certain facilities and reliefs to displaced debtors and displaced creditors.

Section 4 of that Act empowered the State Government to specify any civil court or class of civil courts, as the Tribunals having authority to exercise jurisdiction under the Act for areas to be defined therein.

Section 13 of the Act enabled a displaced creditor claiming a debt from any person who is not a displaced person to make an application for recovery thereof to the Tribunal having local jurisdiction in the place where the said creditor resides, and provided for the purpose a special limitation of one year from the date when the Act came into force.

Admittedly the appellant is a displaced person, and the Bank is not a displaced Bank, within the meaning of those expressions as defined in the said Act. Taking advantage of these provisions, the appellant filed on or about the 24th April, 1952, an application (Case No. 1 of 1952) to the Tribunal at Banaras constituted under section 4 of the Act, claiming the fixed deposit amount of Rs. 1,00,000 as a debt due from the Bank. During the pendency of this proceeding there was an application on the 27th December, 1952, under the Indian Companies Act, 1913 (VII of 1913) in the High Court

of Punjab by some creditors for the winding up of the Bank. On the 29th December, 1952, an ex parte interim order was passed by the High Court under section 171 of the Indian Companies Act staying proceedings in all suits and applications pending against

7956 the Bank, at the time.

The application-Case No. 1 si 1 R N . of 1952-filed by the appellant before the Banaras

" a~ arain Tribunal was also specified therein. It would appear Th• Simi~ Bank however that before the order was communicated to Ing and Indwtrial the Tribunal, the said case before it was disposed of

Co. Limited. and a decree was passed on the 3rd January, 1953,

J -dh d 1 against the Bank for the sum claimed with future '1ganna a as , . mterest at three per cent. per annum. On the 6th January, 1953, the appellant filed an application before the Tribunal for execution of the decree and it was numbered as Execution Case No. 8 of 1953. It appears that on or about the 27th January, 1953, one Mr. D. D. Dhawan was appointed by the Punjab High Court as a Provisional Liquidator of the Bank.

On the application of certain petitioning creditors in the winding up proceedings, the High Court passed another order under section 171 of the Indian Companies Act on the 30th January, 1953, staying execution of the decree against the Bank obtained by the appellant. This order also does not appear to have been communicated to the Tribunal by the Court.

But the Tribunal was informed generally about the situation by a letter of the Provisional Liquidator dated the 13th March, 1953.

Thereby, the attention of the Tribunal was invited to section 171 of the Indian Companies Act which enacted that pending proceedings could not be proceeded with except with the leave of the Court. The Tribunal was accordingly requested by this letter of the Liquidator to stay further proceedings before it in Case No. 1of1952.

In view of this intimation, the Tribunal passed an order dated the 20th March, 1953, stayiog execution, notwithstanding a further application by the appellant dated the 16th March, 1953, to proceed with the execution. On the 21st March, 1953, the Provisional Liquidator filed an appeal in the Allahabad High Court against the decree of the Tribunal obtained by the appellant against the Bank. That appeal is said to be still pending. On the 24th September, 1953, the winding up of the Bank was finally ordered by the Company Judge and the Provisional Liquidator was appointed as the Official Liquidator for the purpose.

S.C.R.

SUP:B.EME COURT :B.EPO:B.TS 607

It is said that as against this order of a single Judge, 1956 there is a Bench appeal now pending in the High Shri Ram Narain Court of Punjab. At this stage the Banking Comv. panies (Amendment) Ordinance, 1953, (Ordinance TheSimlaBank

No. 4 of 1953), was promulgated on the 24th October, ing and Induatrial

1953. This was repealed and substituted, on the 30th Co. Limited December, 1953, by the Banking Companies (Amend- J dh d J ment) Act, 1953 (LII of 1953). On the 17th February, aganna a as • 1954, the appellant filed a further application before the Tribunal asking that the execution case filed before the Tribunal on the 6th January, 1953, which was stayed in view of the letter of the Liquidator dated the 13th March, 1953, should now be proceeded with having regard to the various reasons set out in that application. Curiously enough two of the reasons alleged were (1) that section 171 of the Indian Companies Act was overridden and varied by section 45-C of the Banking Companies (Amendment) Ordinance (Act), and (2) that the Tribunal under the Displaced Persons (Debts Adjustment) Act is not a Court

and hence the stay under section 171 of the Indian Companies Act or under section 45-C of the Banking Companies Act has no application to proceedings pending before the Tribunal. The application of the 17th February, 1954, above-mentioned also prayed for an order to send the case for execution to the Bombay High Court on the ground that the Bank had property within the local limits of the jurisdiction of the said High Court against which it was intended to seek execution. On this application, notice was issued to the Official Liquidator to appear and show cause by the 24th April, 1954. The Liquidator however did not appear. The Tribunal made an order on the 24th April, 1954, transferring to the Bombay High Court under section 39 of the Code of Civil Procedure the said decree for execution. On the 8th June, 1954, the appellant filed an application for execution before the Bombay High Court (Application No.123 of 1954) and asked for attachment and sale of the right, title and interest of the Bank in certain shares and securities belonging to the Bank and lying with the Central Bank of India Ltd., Bombay subject to the charge if

Shri Ram N af'ain

The Si1nla Banking and lndustf'ial

Co, Limited.

JagannadhadasJ.

any on the said Bank. The attachment was ordered on the 18th June, 1954 and was affected on or about the 19th June, 1954.

At this stage the Official Liquidator obtained an order on the 26th June, 1954, from the Punjab High Court purporting to be one under section 45-C of the Banking Companies Act, transferring from the Court of the Banaras Tribunal, the proceedings before it for execution of the decree in Case No. 1 of 1952, obtained against the Bank by the appellant. It would appear that the Tribunal, on receipt of this order, informed the High Court by letter dated the 14th July, 1954, that the execution proceedings had already been transferred to the High Court of Bombay and that no proceedings relating to the execution case were at the time pending before it. Thereafter the Liquidator made an application dated the 28th October, 1954, to the Punjab High Court for setting aside the order of the Bombay High Court dated the 18th June, 1954, directing attachment of the shares and securities belonging to the Bank in the possession of the Central Bank of India Ltd., Bombay. The main grounds on which this application was made are-

(1) That the order of the Tribunal at Banaras in execution Case No. 8of1953, transferring the decree for execution to the Bombay High Court more than six months after the passing of the winding up order, without obtaining leave from the Punjab High Court, was null and void.

(2) That the proceedings taken in execution against the Bank in the Bombay High Court were also null and void in view of sections 171 and 232 of the Indian Companies Act.

(3) That in view of the Banking Companies (Amendment) Act, 1953, it is only the Punjab High Court that has exclusive jurisdiction to entertain and decide all claims between the Bank and the appellant and to deal with the execution proceedings initiated by the appellant against the Bank.

(4) That the execution proceeding was in fact transferred by the Punjab High Court to itself by its order dated the 25th June, 1954, and all questions

arising therefrom have to be dealt with and disposed 7956 of by the Punjab High Court itself.

Sh . R N .

The appellant contested this application in the r• a•:. aram Punjab High Court on various grounds. The main The Simla Bankcontentions wereing and Industrial

(1) That the provisions of the Banking Comc1. Limited. panies Act could not override the provisions of the 1

dh d 1 Displaced Persons (Debts Adjustment) Act, 1951, aganna a as • and that the proceedings thereunder are not affected by the Banking Companies Aot.

(2) That in any case there was no valid order of transfer to the Punjab High Court of the execution proceeding relating to the decree obtained by him against the Bank in the Banaras Tribunal. 'These contentions were negatived by the Punjab High Court.

It was held that the provisions of the Banking Companies Act of 1953 had an overriding effect and that exclusive jurisdiction was vested thereby in the appropriate High Court notwithstanding anything in the Displaced Persons (Debts Adjustment) Act, 1951.

It was also held that there was a valid order of transfer to the Punjab High Court, of the execution proceedings taken by the appellant in respect of his decree. It was therefore held that the order of attachment obtained by the appellant from the Bombay High Court was invalid. The said order was accordingly set aside.

It is against this order that the present appeal has been brought.

Both the above contentions have been strenuously urged before us on behalf of the appellant and equally strenuously opposed on behalf of the Bank.

The learned Attorney-General for the Bank placed reliance on section 232 of the Indian Companies Act at the forefront of his argument and pointed out that under the said section no attachment could have been made without leave of the Court when the Bank was in the process of being wound up by order of the Court. On the other side it has been suggested that neither section 171 nor section 232 of the Indian Companies Act are applicable to these proceedings in view of the Banking Companies Act as amended in 1953. This suggestion proceeds on a misconception and ignores

1956 section 2 of the Banking Companies Act which specifically provides that the provisions of the Act shall Shri Ratn Narain v, be in addition to and not in derogation of the Indian The Simla Bank Companies Act as expressly provided. Hence no leave ;,, g and Industrial under section 232 of the Indian Companies Act hav-

Co. LimUed, ing been obtained, this might have been enough to

J -di J dispose of the case against the appellant if the order aganna iadas . h h B of attac ment ad been set aside by the ombay High Court itself, on the application of the Liquidator to it. Since in this case the order to set aside attachment was passed by the Punjab High Court, the question has to be gone into as to the jurisdiction of that Court to interfere with the order of the Bombay High Court or to declare it to be void. That jurisdiction can only be supported on the view, that exclusive jurisdiction over the matter was vested in the Punjab High Court, under the Banking Companies Act, and that a valid order of transfer of the execution proceeding to the said Court had been made in exercise of the powers under that Act. These questions have, therefore, to be dealt with.

On the facts above stated one matter is clear, viz., that the attempt of the appellant is to realise the amount due to him under the decree by getting at the assets of the Bank which is under liquidation ignoring the purported adjustment of the deposit made by the Bank towards its alleged dues from him under his cash-credit account. His proceeding to execute the decree by attachment is in substance an attempt to constitute himself an independent preferential creditor. So far as the decree is concerned, we wish to say nothing about its validity or otherwise since the matter is pending in appeal before the Allahabad High Court. What we are concerned with now is the proceeding in execution of that decree and the appellant's attempt to get at the assets of the Bank in satisfaction thereof.

There can be no doubt that, apart from any argument available under the Displaced Persons (Debts Adjustment) Act, 1951, which will be considered presently, the matters which must necessarily arise in the course of snch an execution proceeding are matters which would directly fall

within the scope of section 45-B of the Banking Com- 7956 Panies Act as amended in 1953 which runs as follows: Sh .R-N . . ri am araui "The High Court shall, save as otherwise exv. pressly provided in section 45-C, have exclusive juris- The s; ni..za Bankdiction to entertain and decide any claim made by or ing and .1nustrial

against a banking company which is being wound up Co. L•mited. (including claims by or against any of its branches in JagannadhadasJ.

India) or any application made under section 153 of the Indian Companies Act, 1913 (VII of 1913) by or in respect of a banking company or any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of a banking company, whether such claim or question has arisen or arises or such application has been made or is made before or after the date of the order for the winding up of the banking company or before or after the commencement of the Banking Companies (Amendment) Act, 1953".

There has ben some faint argument before us that the questions that arise in execution in this case and particularly the question relating to attachment which has been effected by the Bombay High Court, are not questions which fall within the scope of section 45-B. In our opinion this contention is so obviously untenable, in view of the very wide and comprehensive language of the section that, it requires no more than to be mentioned and rejected. If, ,. therefore, the proceeding to execute the decree obtained by the appellant in this case and the claims and matters which must necessarily arise in the course of that execution fall within the scope of section 45-B, the execution proceeding in this case would prima facie be within the exclusive jurisdiction of the High

Court under section 45-B, subject to the two questions that have been raised in the case which are (1) whether there is anything in the Displaced Persons

(Debts Adjustment) Act, 1951, which overrides this jurisdiction, and (2) whether in view of the fact that the original execution application to the Tribunal was made before the Banking Companies (Amendment) Ordinance and Act of 1953, came into force, there has been any valid order under section 45-C of

Shri Ram Narain v.

The Simla Bank.

Ing and Industrial Co, Limited,

Jagannadhada$ J.

the Banking Companies Act by the Pnnjab High Court transferring the pending execution proceeding to itself.

So far as the first of the above questions is concerned, learned counsel for the appellant relies on sections 3 and 28 of the Displaced Persons (Debts Adjustment) Act, 1951. Section 28 declares that the civil court which passed the decree as a Tribunal shall be competent to execute it. Section 3 runs as follows:

"3.

Overriing effect of Act, rules and orders:- Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any decree or order of a court, or in any contract between the t . ,, par ies . . .

On the strength of these sections learned counsel for the appellant argues that the jurisdiction which the Tribunal has under section 28 for executing the decree must prevail over the jurisdiction of the High court in respect of this matter under section 45-B of the Banking Companies Act. On the other hand, the respondent relies on section 45-A of the Banking Companies Act, which runs as follows:

"The provisions of this Part and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in the Indian Companies Act, 1913 (VII of 1913), or the Code of Civil Procedure, 1908 (Act V of 1908), or the Code of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force or any instrument having effect by virtue of any such law but the provisions of any such law or instrument in so far as the same are not varied by, or inconsistent with, the provisions of this Part or rules made thereunder shall ayply t~ all proceedings under this Part".

Now the question as to which of the provisions of these two Acts has got overriding effect in a given case, where a particular provision of each is equally applicable to the matter is not altogether free from difficulty. In the present case, primafacie by virtue

of section 28 of the Displaced Persons (Debts Adjust- 1956 ment) Act the jurisdiction to execute the Tribunal's Sh . R n Nnt'ain decree is in the Tribunal.

But it is equally clear ,., "'v. that the jurisdiction to decide any of the claims which The Simla Bank must necessarily arise in the execution of the decree ing and Jndust..ial

is vested in the High Court by virtue of section 45-B Co. Limited. of the Banking Companies Act. Each of the Acts J -;;;: d J has a specific provision, section 3 in the Displaced aganna

0 as • Persons (Debts Adjustment) Act and section 45-A in the Banking Companies Act, which clearly indicates that the relevant provision, if applicable, would have overriding effect as against all other laws in this behalf. Each being a special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case. In support therefore of the overriding effect of the Displaced Persons (Debts Adjustment) Act of 1951 as against section 45-B of the Banking Companies Act, learned counsel for the appellant called in aid the rule that a later Act overrides an earlier one. (See Cl'aies on Statute Law, pages 337 and 338). He urged that the Banking Companies (Amendment) Act of 1953 should be treated as part of the 1949 Banking Companies Act and hence overridden by the Displaced Persons

(Debts Adjustment) Act of 1951 and relied on the case in Shamarao V. Parulekar v. The District Magistrate, Thana, Bombay(1) and on the passage therein at page 687 which is as follows:

"The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer t.o the amending A'.ct at all".

Now there is no question about the correctness of this dictum. But it appears to us that it has no application to this case. It is perfectly true as stated therein that whenever an amended Act has to be

(1) [1962] S.C.R. 688.

1956 applied subsequent to the date of the amendment the various unamended provisions of the Act have to be Shri Ram Narain v. read along with the amended provisions as though

The Simla Bankthey are part of it. This is for the purpose of detering and Industrial mining what the meaning of any particular provision

Co. Limited. of the Act as amended is, whether it is in the uni g dh d J amended part or in the amended part. But this is a a"na a as ' t th h' ' h h no e same t mg as saymg t at t e amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication. On the facts of that case the question that was considered arose in the following circumstances. There was an order of detention under the Preventive Detention Act of 1950. That Act was due to expire on the lat April, 1951.

B11t there were subsequent amendments of the Act which extended the life of the Act up to 1st October, 1952.

The amending Act provided inter alia that detention orders which had been confirmed previously and which . were in force immediately before the commencement of the amending Act "shall continue to remain in force for so long as the principal act is in force". The question for consideration was whether this indicated the original date of expiry of the principal Act or the extended date of the principal Act. The Court had no difficulty in holding that it obviously related to the latter, notwithstanding that the principal Act was defined as meaning "A ct of 1950". It was pointed out that the phrases "principal Act" and "Act of 1950" have to be understood after the amendment as necessarily meaning the 1950 Act as amended, i.e., which was to expire on the 1st October, 1952. In the present case what we are concerned with is not the meaning of any particular phrase or provision of the Act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the Act. For such a

purpose the amendment cannot obviously be treated as having been part of the original Act itself so as to

enable the doctrine to be called in aid that a later 19sr; Act overrides an earlier Act. On the other hand, if Sh . R-N . h 1 h l t A t "d' 1.

A t r• am ara111 t e ru e as to t e a er c overn mg an ear ier c v is to be applied to the present case, it is the Banking The Simi~ Bank Companies (Amendment) Act, 1953, that must be ing and Industrial treated as the later Act and held to override the pro- Co. Limited. visions of the earlier Displaced Persons (Debts Adjust- - ment) Act, 1951. It has been pointed out, however, JagannatlhadasJ. that section 13 of the Displaced Persons (Debts Adjustment) Act, uses the phrase "notwithstanding anything inconsistent therewith in any other law for the time being in force" and it was suggested that this phrase is wide enough to relate even to a future Act if in operation when the overriding effect has to be determined. But it is to be noticed that section 45-A of the Banking Companies Act has also exactly the same phrase. What the connotation of the phrase

"for the time being" is and which is to prevail when there are two provisions like the above each containing the same phrase, are questions which are not free from difficulty. It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.

Now so far as the Banking Companies Act is concerned its purpose is clearly, as stated in the heading of Part III-A, for speedy disposal of winding up proceedings. It is a permanent statutory measure which is meant to impart speedy stability to the financial credit structure in the country in so far as it may be effected by banks under liquidation. It was pointed out in Dhirendra Chandra Pal v. Associated Bank of Tripura Ltd. (1) that the pre-existing law relating to the winding up of a company involved considerable delay ar.d expense. This was sought to be obviated so far as Banks are concerned by vesting exclusive jurisdiction in the appropriate High Court in respect of all matters arising in relation to or in the course of

(1) (1955] 1 S.C.R. 1098.

1956 winding up of the company and by investing the provisions of the Banking Companies Act with an over- Shri Ram Narain •· riding effect. This result was brought about first by The Simla Bankthe Banking Companies (Amendment) Act, 1950 and ingand Industrial later by the Banking Companies (Amendment) Act, Co. Limited.

1953. Sections 45-A and 45-B of Part III brought in - by the 1950 Act vested exclusive jurisdiction in the JagannadhadasJ. appropriate High Court to decide all claims by or against a Banking Company relating to or arising in the course of winding up. But sections 45-A and 45-B of the Part III-A substituted by 1953 Act are far more comprehensive and vest not merely exclusive jurisdiction but specifically provide for the overriding effect of other provisions also.

Now, the Displaced Persons (Debts Adjustment) Act is one of the statutory measures meant for relief and rehabilitation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. It is by and large a measure for the rehabilitation of displaced debtors. Notwithstanding that both the Acts are important beneficial measures, each in its own way, there are certain relevant differences to be observed. The first main difference which is noticeable is that the provisions in the Displaced Persons (Debts Adjustment) Act are in a large measure enabling and not exclusive. There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfied with the reliefs which an ordinary civil court can give him in the normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes into operation. At this point it is necessary to notice the further difference that exists in the Displaced Persons (Debts Adjustment) Act between applications by displaced debtors and applications by displaced creditors against persens who 1956 are not displaced persons. So far as the a pplica ti on s Sh . R N . b d. 1 d d bt d t• 15 . ,., am ara•n y 1sp ace e ors are concerne , sec 10n . Ill v. terms provides for certain consequences arising, when The Simla Bank

the application is made to the Tribunal by a displaced ing and Industrial debtor under section 3 or section 5(2), i.e., stay of all co. Limited. pending proceedings, the cessation of effect of any J -h J . t • d tt h t t d b t th agannPd adas • m er1m or era or a ac men s, e c. an a ar o e institution of fresh proceedings and so forth. But the terms of section 13 relating to the entertainment of an execution proceeding by the said Tribunal on a decree so obtained, do not appear to bring about even the kind of consequences which section 15 contemplates as regards applications by displaced debtors.

Section 13 is, in terms, only an enabling section and section 28 merely says that "it shall be competent for the civil court to execute the decree passed by it as a Tribunal". They are not couched in terms vesting exclusive jurisdiction in the Tribunal. Whatever, therefore, may be the inter se position, in a given case, between the provisions of the Banking Companies Act and the provisions of the Displaced Persons (Debts .Adjustment) Act, in so far as such provisions relate to displaced debtors, we are unable to find that the jurisdiction so clearly and definitely vested in the High Court by the very specific and comprehensive wording of section 45-B of the Banking Companies Act with reference to the matters in question, can be said to be overridden or displaced by anything in the Displaced Persons (Debts Adjustment) Act~

1951, in so far as they relate to displaced creditors.

It is also desirable to notice that so far as a claim of a displaced creditor against a non-displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e., without having to incur the necessary expenses by way of court-fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has

1956 jurisdiction over the place where he resides, i.e., a - place more convenient to him th 0 n if he had to file a Shf'i Ram Nar'ain JN v. suit under the ordinary law in which case he would The Simla Bankhave to file a suit at the place where the defendant reing and Industrial sides or part of the cause of action arises. There may Co. Limited. also be a few other minor facilities. But what is neces-

Jagannadhaaa•J. sBaryko nCotice is hatAthte oerridingd_pro 1

vis1don odf _the an mg ompames c , so ar as a 1sp ace ere 1tor is concerned, is sqbstantially only as regards jurisdiction. Section 45-A thereof, while providing that the provisions of Part III-A and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force, specifically provides that "the provisions of any such law in so far as the same are not varied by or inconsistent with, the provisions of that part or rules made thereunder, shall apply to all proceedings under that Part". Therefore, in the present case the overriding effect of section 45-B of the Banking Companies Act deprives him only of the facility of pursuing his execution in the jurisdiction of the Tribunal. But there is no reason why he should not get the benefit of other provisions, if any, which may give him an advantage and are not inconsistent with any of the other specific provisions of the Banking Companies Act. Having regard to all the above considerations and the wide and comprehensive language of sections 45-A and 45-B of the Banking Companies Act, we are clear that a proceeding to execute the decree obtained by the appellant from the Tribunal against the Bank in Case No. 1 of 1952 and all other incidental matters arising therefrom such as attachment and so forth are matters within the exclusive jurisdiction of the Punjab High Court subject to the provisions of section 45-C of the Banking Companies Act as regards pending matters. This leads us to the question whether in terms of section 45-C there has been a valid transfer of the execution proceeding to the Punjab High Court.

Before dealing with this question it is necessary to notice the argument that section 45-C of the Banking Companies Act has no application at all to a proceeding pending before the Tribunal. The argument 195§ is that section 45-C applies only to a proceeding pend- Sht" R m N rain ing in any other Court immediately before the com- ' av. a mencement of the Banking Companies (Amendment) The Simla Bank Act.

It is urged that the Tribunal under the Dising and 1naustria1 i laced Persons (Debts Adjustment) Act is not a Court. co. Limited. n support thereof the judgment of one of the learned J -;;,; d J Judges in Parkash Textile Mills Ltd. v. Messrs Muni a1tanna a as ' Lal Chuni Lal(1) has been cited to show that the Tribunal constituted under this Act is not a Court.

The question that arose in th11-t case was a different one, viz., as to whether the Tribunal had the exclusive jurisdiction to determine for itself the preliminary jurisdiction on facts and it is for that purpose the learned Judge attempted to make out that a Tribunal was a body with a limited jurisdiction, which limits were open to be determined by a regular court when challenged.

It is unnecessary for us to eonsiderwbether the view taken by thelearnedJudge was correct. No such question arises in tl!is case and we are quite clear that the Tribunal which is to exercise the jurisdiction for executing the decree in question is "a. Court" within the scope of section 45-C of the Banking Companies .Act.

Section 28 of the Displaced Persons (Debts Adjustment) .Act itself is reasonably clear on that point.

That section runs as follows:

"It shall be competent for the civil court which has been specified as the Tribunal for the purposes of this Act to execute any decree or order passed by it as the Tribunal in the same manner as it could have done if it were a decree or order passed by it as a

civil court".

It is quite clear on the wording of this section that it is a civil court when it executes the decree whatever may be its status when it passed the dec; ee as a Tribunal.

There is, therefore, no substance in this argument.

Now' coming to the question whether there has been a valid transfer of the execution proceedings to the Punjab High Court, there can be no doubt that the

(1) [1955) 67 P.L R. 107.

1956 execution proceeding filed by the appellant before the

Sh .R-N . Tribunal on the 6th January, 1953, continued to re- " am arain • d" b th d h h B k" C v. marn pen mg y e ate w en t e an mg om- The Simla Bank panies (Amendment) Act, 1953, came into operation.

Ing and Industrial This appears from the subsequent applications dated

Co. Limited. the 16th March 1953 and the 17th February 1954 ' ' ' ' J dh d 1 which always relied on the earlier application of the aganna a as 6th January, 1953, as the main pending application.

This application was, therefore, a pending application for the purposes of section 45-C of the Banking Companies Act.

The jurisdiction of the Punjab High Court with reference to this execution proceeding must depend upon whether or not there was a valid order of transfer of this proceeding to itself under sect.ion 45-C.

This section contemplates, in respect of pending proceedings that (a) the Official Liquidator is to make a report to the High Court concerned within the time specified in sub-section (2) thereof,

(b) the High Court is to consider which out of these pending prgceedings it should transfer to itself, and ( c) the High Court should pass orders accordingly.

It further provides by sub-section (4) thereof that as regards such of the pending proceedings in respect of which no such order of transfer has been made the said proceeding shall continue in the Court in which it is pending. It is with reference to these provisions that on the 23rd November, 1953, the Official

Liquidaor appears to have submitted a report to the " Punjab High Court, requesting that certain proceedings mentioned in lists A and B attached to the said report should be transferred to the High Court under section 45-0(3). List A pertains to suits and List B to applications under the Displaced Persons (Debts Adjustment) Act, 1951.. It is pointed out that list B which shows an application before the Tribunal under section 19 of the Displaced Persons (Debts Adjustment) Act does not show the execution application under section 28 of that Act then pending in the Banaras Tribunal and with which we are concerned.

It is strenuously urged that this shows tha.t there was no application for transfer of this proceeding to the Punjab High Court and that, therefore, there could

have been no transfer thereof and that accordingly 1956 by virtue of section 45-C(4) of the Banking Companies Shri Ram Narai" Act the jurisdiction in respect of the execution prov. ceeding continued to be with the Tribunal. It is The Simla Bankurged that since sub-section ( 4) of section 45-C ening and.Industrial joins that such proceeding "shall be continued" in co. Limited. the Court in which the proceeding was pending, there JagannadhadasJ can be no question of any transfer thereafter. It is pointed out that the view of the High Court that there has been a valid transfer to itself is based on an order passed on an alleged supplementary report by'the Liquidator on the 25th June, 1954, which is beyond the three months' time provided in section 45-C (2) and that such an order of transfer is invalid.

It is also urged that the transfer so made was without notice to the appellant.

That there was in fact an order of transfer made by the Punjab High Court specifically of this execution proceeding with which we are concerned admits of no doubt as a fact. This is also admitted by the appellant in his application for special leave.

The order itself is not before us nor are the exact circumstances under which this order came to be made, clearly on the record. So far as one can gather from the papers before us the position 1:1eems to be this. When the appellant filed his application to the Tribunal on the 17th February, 1954 (by which he asked that its order dated t4e 20th March, 1953, staying execution proceedings should be vacated for reasons shown therein) notice to show cause against it and for appearance therefor on the 24th April, 1954, was sen~ to the Official Liquidator by the Tribunal.

The Official Liquidator not having appeared on that date, the Tribunal, as already stated, passed the order as prayed for on the 24th April 1954, transferring the execution to the Bombay High Court. It may be mentioned at this stage that an argument has been advanced that the Liquidator, nothaving appeared on notice, can no longer challenge the validity of the continuance of the execution proceeding by the Tribunal and of the subsequent attachment by the Bombay High Court. The question, however~ is one

7956 of jurisdiction depending on the validity of transfer

Shri Ram Narain made by the High Court under statutory power. The v. argument is without substance. To resume the nar- The Simla Bankrative, the Official Liquidator on receiving notice, ing and Industrial addnissed a letter dated the 19th March, 1954, to the co. Limited.

Company Judge of the Punjab High Court mention-

] g dh d J ing the fact that he received a notice .from the aanna aas. .

Banaras Tribunal to appear and show cause on the 24th April, 1954. He mentioned therein his doubt as to the jurisdiction of the Tribunal to entertain the application and requested that in order to avoid inconvenience and expenditure an immediate transfer of the execution case together with the appellant's application to the Tribunal for vacating the stay order should be made by the High Court in exercise of the powers conferred on it by section 45-C of the Act. On this the learned Judge appears to have passed an order dated the 22nd March, 1954, issuing notice to the appellant for appearance on the 2nd April, 1954.

This appears to have been adjourned from time to time and it would appear that on the 25th June, 1954, to which date the matter stood adjourned, the Liquidator addressed another letter to the Company Judge, which is referred to in the record as the supplementary report of the Liquidator. Therein he only narrated the entire history of the suit and of the execntion proceeding and the circumstances which rendered it necessary that an order of transfer should be made immediately. Probably this was meant for opposing any further adjournment. It appears at any rate that it was on this date that the order of transfer was passed. All the facts stated above can be gathered from the two letters of the Liquidator dated the 19th March, 1954, and the 25th June, 1954, and a further note of the Liquidator put up to the Company Judge with reference to the letter dated the 14th July, 1954, received from the Tribunal which is all the relevant material included in the paper book before us. The actual date of the note does not appear from the record. Unfortunately neither the original order of the Judge made on the report of the Liquidator dated the 23rd November, 1953, nor the order of

transfer relating to this particular case, which appears 7956 to have been made on the 25th June, 1954, on the Shri Ram Narain letter of the Liquidator dated the 19th March, 1954, v. are before us.

We do not know the exact terms in The Simla Bankwhich those orders were made and the reason why no ing and Industrial i; ipecific order of transfer was made on the first report co. Limited. and why an additional order of transfer was made-as / di d J h h J I aganna ia as • appears-so late as on t e 25t une, 1954. n any case the argument on behalf of the appellant on this part of the case seems to be based on a misapprehension of the facts. If, as appears, the order of the 25th June, 1954, was made with reference to the letter of the Liquidator dated the 19th March, 1954, -a fact which appears to be admitted by the appellant in para 16 of his application for leave to appeal to this Court-and what is called supplementary report dated the 25th June, 1954, was nothing more than bringing additional facts to the notice of the Court by way of the history of the execution proceeding, there appears to be no foundation in fact for the contention that the order was made on a report filed beyond three months provided under section 45-C(2) of the Banking Companies Act. Sub-section (2) of section 45~C provides that "the Official Liquidator shall, within three months from the date of the winding up order or the commencement of the Banking Companies (Amendment) Act, 1953, whichever is later, or such further time as the High Court may allow, submit to the High Court a report containing a list of all such pending proceedings together with particulars thereof". The letter of the Official Liquidator dated the 19th March, 1954, is within three months of the commencement of the Banking Companies (Amendment) Act, 1953, which came into force on the 30th December, 1953, and there is nothing in subsection (2) of section 45-C that two or more successive reports may not be made within the prescribed period of three m6nths. It appears also from the papers above referred to that notice was issued to the appellant with reference to this letter of t}Je 19th March, 1954, of the Liquidator to transfer the execution application to itself. It appears to us, therefore,

Sh1'i Ram Narain v.

The Si1nla Bank ing and Industrial Co. Limited. ,

Jagannadhadaa J,

from such record as is before us, that the contention of the appellant raising objection to the validity of the order of transfer is untenable on the facts. Nor, are we satisfied that even if the facts as to how the order of transfer dated the 25th June, 1954, came to be made are shown to be otherwise than above stated, there is any reason to think that sections 45-C(2),

(3) and (4) are to be construed so as to make the power of the Court to transfer dependant on the filing of a report by the Liquidator strictly within three months. The various sub-sections taken together seem to imply the contrary. Section 45-C(l) definitely imposes a bar on any pending matter in any other court being proceeded with except in the manner provided therein. The jurisdiction of that ether Court to proceed with a pending proceeding is made to depend on the fact that its pendency is brought to the notice of the appropriate High Court and its decision, express or implied, to leave it out without transferring it to itself. Having regard to the scheme and policy of sections 45-B and 45-C of the Banking Companies Act, it appears more reasonable to think that in respect of a pending matter which was not in fact brought to the notice of the Court by the Liquidator within the three months, there is nothing to prevent the Court exercising its power of transfer at such time when it is brought to the notice of the Court. It is, however, unnecessary to decide that point finally in this case since, to say the least, all the facts and the requisite records have not been properly placed before us. We have been asked to send for all the relevant records in order to ascertain the facts correctly or to give an opportunity for the purpose. We do not think it right to do so in the circumstances of this case. It is necessary to point out, as admitted by the appeilant in his application for special leave that there has been an application to this Court dated the 16th October, 1954, for the grant of special leave specifically as against the order of transfer of the Punjab High Court made on the 25th June, 1954, but that application was rejected.

has been suggested that while so rejecting, this Court left the matter open. There is nothing to substan-

Shri Ram Narain tiate it. Therefore, an argument as to the invalidity v. of the order of transfer cannot be entertained at this The umta Bank. stage. ing and Industrial For all the above reasons we are satisfied that the Co. Limited view taken by the High Court that it had exclusive 1 -:;; d 1 jurisdiction in respect of the present matter and that aganna

10 as • there was a valid transfer to itself by its order dated the 25th June, 1954, is correct.

In the proceedings before the High Court a good deal has been made as to the alleged suppression of material facts by the appellant from the Bombay High Court in obtaining the impugned order of attachment from that Court and the learned Judge's order also indicates that he was to some extent influenced thereby. It appears to us that the alleged suppression has no bearing on the questions that arose for decision before the learned Judge, on this application. The learned Attorney-General frankly conceded the same.

We have been told that there has been some application for contempt in the Court on the basis of the alleged suppression. We do not, therefore, wish to say anything relating to that matter which may have any bearing on the result of those proceedings.

In the result this appeal is dismissed with costs.

Appeal dismissed.

RAM NARAIN

VIVIAN BosE

JAGANNADHADAS

B. P. SINHA JJ.

ss. 45

ss. 8, 28

s. 46

Lahore

Simla

s. 4

High Court of Punjab

3rd January 1953

Bombay High Court

the Code of Civil Procedure

Bombay

Punjab High Court

s. 45

Companies Act

Banaras Tribunal

Companies Act

Supreme Court

Banking Companies Act, 1949

Ram N

Companies Act

s. 45

ss. 45

Companies Act

Punjab High Court at Chandigarh

J. B. Dadachanji

Rameshwar Nath

G. Setalvad

Ratanlal Chawla

JAGANNADBADAS

15th August, 1947

Simla Bank-

Bank Co. Limited

7th November, 1951

Section 4

Section 13

24th April, 1952

Banaras

section 4

27th December, 1952

Indian Companies Act, 1913

High Court

of Punjab

29th December, 1952

section 171

Companies Act

3rd January, 1953

27th January, 1953

D. D. Dhawan

section 171

Companies Act

30th January, 1953

13th March, 1953

section 171

Companies Act

21st March, 1953

Allahabad High Court

24th September, 1953

High Shri Ram Narain Court of Punjab

section 171

Companies Act

section 45

section 171

Companies Act

section 45

Companies Act

17th February, 1954

24th April, 1954

section 39

the Code of Civil Procedure

8th June, 1954

Ram N af'ain

section 45

Companies Act

14th July, 1954

High Court of Bombay

28th October, 1954

18th June, 1954

Central Bank of India Ltd.

sections 171 and 232

Companies Act

25th June, 1954

Simla Bankcontentions

Companies Act

section 232

Companies Act

section 171

section 232

Companies Act

Companies Act

section 2

Companies Act

Companies Act

section 232

Companies Act

Companies Act

section 45

section 45

section 153

Indian Companies Act, 1913

section 45

section 45

section 45

section 45

Ing and Industrial Co, Limited

Companies Act

sections 3 and 28

Section 28

Section 3

section 28

section 45

Companies Act

section 45

Companies Act

Companies Act

Code of Civil Procedure, 1908

Code of Criminal Procedure, 1898

section 28

section 45

Companies Act

section 3

section 45

Companies Act

section 45

Companies Act

Banking Companies Act

1st October, 1952

JagannatlhadasJ.

section 13

section 45

Companies Act

Now so far as the Banking Companies Act

(1955] 1 S.C.R. 1098

Companies Act

Ram Narain

Sections 45

sections 45

sections 3

sec 10

Simla Bank

section 3

section 5(2)

section 13

section 15

Section 13

section 28

Companies Act

section 45

Companies Act

Simla Bankhave

Jagannadhaaa•J.

Section 45

section 45

Companies Act

Companies Act

sections 45

Companies Act

section 45

Companies Act

section 45

section 45

Companies Act

section 45

section 45

Section 28

section 45

Companies Act

23rd November, 1953

Liquidaor

section 45

section 19

section 28

section 45

section 45

JagannadhadasJ

section 45

section 45

22nd March, 1954

2nd April, 1954

19th March, 1954

Simla Bankwhich

25t une, 1954

March, 1954

section 45

Companies Act

section 45

30th December, 1953

section 45

Jagannadhadaa

sections 45

Section 45

sections 45

Companies Act


May 10

SUPREME COURT REPORTS (1956]

MESSRS MEHTA PARIKH & CO.

THE COMMISSIONER OF INCOME-TAX,

BOMBAY.

(S. R. DAS C.J., BHAGWATI a.nd VENKATARAMA

AYYAR JJ.]

Income-tax-I nconie jroni undisclosed so11, rces-Assessment- Assessee' s explanation based on accounts supported by offidavits- Accounts accepted as genuine and statements in affidavits not controverted-Finding based on no evidence-Inference front. proved or iidmitted facts-If questions of law-Principle of interferencc- Indian Income-tax Act (XI of 1922), ss. 62(2), 23(3), 26A.

The appellants, a partnership firm assessed under ss. 23(3) and 26 A of the Incometax Act, were called upon by the Incometax Officer during the assessment year 1947-48 to explain how and when they came to possess 61 thousandrupee currency notes which they had encashed on the 18th January, 1946, after the promulgation of the High Denomination Bank Notes (Demonetisation) Ordinance of 1946, under which such notes ceased to be legal tender on the expiry of the 12th of January, 1946. The assessees produced their cash-book entries from the 20th December, 1945, to the 18th January, 1946, which were accepted as correct by the Income-tax Officer, who, however, made no further scrutiny of the accounts, and the entries showed that on the 12th of January, 1946, the cash balance in hand was Rs. 69,891·2-6. The case of the appellants was that the said notes were a part of the cash balance and in further support of their case they filed before the Appellate Assistant Commissioner three a1, Edavits by persons actually making the payments, ..._ in respect of certain entries in the cash-book to prove that Rs. 20,000 on the 28th December, 1945, Rs. 15,000 on the 6th of January, 1946, and Rs. 8,000,, out of a sum of Rs. 8,500, on the 8th of January, 1946, were paid in thousand-rupee notes.

The Income-tax Officer and the Appellate Assistant Commissioner in appeal, on a. ca.!culation of their own, held that the possession by the appellants of so many thousand-rupee notes was an impossibility and that these notes must represent income from undisclosed sources and as such be added to the assessable income of the appellants. Neither the Appellate Assistant Commissioner nor the Income-tax Officer, who was present at the hearing of the appeal, called for the deponents in order to cross-examine them with reference to their statement in the affidavits. The Appellate Tribunal Ql1 appeal accepted the explanation of the assessees in respect of 31 of the notes but not with regard to the rest and rejected their application for a reference of the matter to the High Court. The assessees moved the High Court and the Tribunal was directed under s. 66(2) to state

a case for its decision. In answering the main question, the High 7956 Court was of the opinion that the finding of the Tribunal was a finding of fact or an inferencB based on such finding and it was not Messrs M, hta possible to say that such finding or inference was unreasonable or Parikh and Co. arbitrary. v.

The Commissioner Held (per curiam), that the High Court was in error in refusing of Income.tax to interfere with the finding of the Tribunal which was based on no Bombay ' evidence and the appeal must succeed.

Per C.J. and BHAGWATI J.-Conclusions based on facts proved or admitted may be conclusions of fact but whether a particular inference can legitimately be drawn from such conclusions may be a question of law.

Where, however, the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and propel'!y instructed as to the relevant law could have found, the court is entitled to interfere.

Chitnilal Ticamchancl Coal Co. Ltd. v. Commissioner of Incometax, Bihar and Orissa, ([1955]) 27 I.T.R. 602), applied.

Cameron v. Prendergast (Inspector of Taxes), ([1940] 8 I.T.R. (Suppl.) 75), Bamford v. Osborne (H. M. Inspector of Taxes), ([1942] 10 I.T.R. (Suppl.) 27) and Edwards (Inspector of Taxes) v. Bairstow and Another, ([1955] 28 I.T.R. 579), referred to.

The High Court was in error in treating the finding of the Tribunal as a finding of fact and failed to apply the true principles of interference applicable to such cases.

The entries in cash-book and the statements made in the affi davits in support of the explanation, which were binding on the Revenue and could not be questioned, clearly showed that it was quite within the range of possibility that the appellants had in their possession the 61 high denomination notes on the relevant date and their explanation could not be assailed by a purely imaginary calculation of the nature made by the Income-tax Officer or the Appellate Assistant Commissioner.

The Tribunal made a wrong approach and while accepting the appellants' explanation with regard to 31 of the notes, it had absolutely no reason to exclude the rest as not covered by it in absence of any evidence to show that the excluded notes were profits earned by the appellants from undisclosed sources. The appellants having given a reasonable explanation the Tribunal could not, by applying a rule of thumb, discard it so far as the rest were concerned and act on mere surmise.

Per VENKATARAMA AYYAR J.-The finding of the Tribunal that high denomination notes of the value Rs. 30,000 represented concealed profits of the appellants being unsupported by any evidence amounted to an error of law and was liable to be set aside.

That so many notes of high denomination should have been held as part of

1956 the cash for so long a time, might be highly suspicious but decisions must be founded on legal testimony and not on suspicion.

Messrs Mehta Parikh and Co. v.

The Comtnissioner of lnco, netax,

Botnbay

The question whether the accounts were genuine or not was a pure question of fact ana a finding that they were genuine was bind ing both on the Revenue and the subject.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of 1954.

Appeal from the judgment and order dated the 10th March 1953 of the Bombay High Court in Income-tax Reference No. 35 of 1952.

R.J. Kolah and/. N. Shroff for the appellant.

G. N.Joshi, Porus A. Mehta and R.H. Dhebar for the respondent.

1956: May 10. The following Judgments were delivered.

BHAGWATI J.-Two questions were referred by the Income-tax Appellate Tribunal to the High Court of Bombay under section 66(1) of the Indian Incometax Act.

(1) Whether there is any material to justify the assessment of Rs. 30,000 (Rupees thirty thousand) from out of the sum of Rs. 61,000 (Rupees sixtyone thousand) (for Income-tax and Excess Profits Tax and Business Profits Tax purposes) representing the value of high denomination notes which were en cashed on the eighteenth day of January one thousand nine hundred and forty six, and

(2) Whether in any event by reason of the orders of the Revenue Authorities not having found that the alleged item was from alleged undisclosed business profits the assessment of Rs. 30,000 (Rupees thirty thousand) is in law justified for Excess Profits Tax and Business Profits Tax purposes?

The High Court answered the first question in the affirmative but refused to answer the second question, being of the opinion that even though it had asked the Tribunal to refer that question under section 66

(2) of the. Act, it had no jurisdiction to do so inasmuch as the appellants had not asked the Tribunal to refer

the second question and, therefore, no question arose of the Tribunal refusing to raise that question or to submit it for the decision of the High Court.

The appellants are a partnership firm doing business in Mill Stores at Ahmedabad. Their head office is in Ahmedabad and their branch office is in Bombay.

The Governor-General on 12th January 1946 promulgated the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 and High Denomination Bank Notes ceased to be legal tender on the expiry of 12th day of January 1946. Pursuant to clause 6 of the Ordinance the appellants on 18th January 1946 encashed high denomination notes of Rs. 1,000 each of the face value of Rs. 61,000.

This was done in the calendar year 1946 being the account year corresponding with assessment year 1947-48.

During the assessment proceedings for the year 1947-48 the Income-tax Officer called upon the appellant to prove from whom and when the said high denomination notes of Rs. 61,000 were received by the appellants and also the bona fides of the previous owners thereof. After examining the entries in the books of account of the appellants and the , position of the Cash Balances on various dates from 20th December 1945 to 18th January 1946 and the nature and extent of the receipts and payments during the relevant period, the Income-tax Officer came to the conclusion that in order to imstain the contention of the appellants he would have to presume that there were 18 high denomination notes of Rs. 1,000 each in the Cash B11.lance on 1st January 1946 and that all cash receipts after l'st January 1946 and before 13th January 1946 were received in currency notes of Rs. l,000 each, a presumption which he found impossible to make in the absence of any evidence. He, therefore, added the sum of Rs. 61,000 to the assessable income of the appellants from undisclosed sources.

On appeal to the Appellate Assistant Commissioner the appellants produced before him affidavits of three persons to show that the appellants had received Rs. 20,000, in 1,000 rupees currency notes on 28th

Messrs Mehta Parikh and Co.

The Commissioner

of /11come-ta; r,

Bombay

Bhagu:ati J,

Messis Mehta Parikh and Co. v.

The Co1ntn£sst'oncr

of lnconie-tax,

Bo1nbay

Bhagu.>ati J,

December 1945, Rs. 15,000 in 1,000 rupees currency notes on 6th January 1946 and Rs. 8,500 in 1,000 rupees currency notes (making Rs. 8,000) on 8th January 1946, thus aggregating to Rs. 43,500 during the relevant period. The Appellate Assistant Commissioner did not accept the statements contained in the said affidavits and dismissed the appeal and confirmed the order of the Income-tax Officer.

An appeal was taken by the appellants before the Income-tax Appellate Tribunal. The Tribunal after taking into consideration all the materials which bad been placed before the Appellate Assistant Commissioner, including the said affidavits, was of the opinion that if it was to accept the appellants' contention, it would mean that practically every payment above Rs. 1,000 was received by the appellants in high denomination notes, which was almost impossible. The Tribunal could not say that the appellants had no high denomination notes with them. It accepted the books of account of the appellants but thought that the cash balance on 18th January 1946 could not have sixtyone high denomination notes. It came to the conclusion that the appellants appeared to have put in high denomination notes in the cash balance and taken the other notes away. It accepted the appellants' explanation only in regard to 31 notes and directed that the appellants' assessment for the year under reference be reduced by that amount and dismissed the rest of the appeal.

The appellants applied to the Tribunal for stating a case and referring the first question of law to the High Court for its opinion under section 66(1) of the Act.

The Tribunal rejected the said application holding that no question of law arose from its order.

The appellants thereupon applied to the High Court under section 66(2) of the Act for an order directing the Tribunal to state a case and refer the questions set out in the application. The High Court directed the Tribunal to state a case and refer the two questions of law set out hereinabove to it for its decision under section 66(2) of the Act. In stating the case and referring the said questions of law to the High

Court, the Tribunal pointed out that the second quest9s6 tion was not urged' before the Tribunal at any stage Messrs Mehta and hence it was not dealt with by it in its original Parikh and co. m~. The reference was heard by the High Court and the The Commissioner High Court answered the first referred question in the of Income-tax, affirmative, but did not answer the second referred Bombay question, The High Court held that there were BhagwatiJ. materials before the Tribunal to hold that the sum of Rs. 30,000 represented the income of the appellants from undisclosed sources and that the finding of the Tribunal was a finding of fact based on materials before it and even if it was an inference drawn by the Tribunal, the inference was based on the facts and materials before the Tribunal. The Higl:i Court observed that it was impossible to say that the inference drawn by the Tribunal from the circumstances was an unreasonable inference or an arbitrary and capricious inference or an inference, which no judicial tribunal could ever draw. It, therefore, answered the first referred question in the affirmative.

As regards the second referred question, the High Court held that that question was not raised by the appellants in their application for reference under section 66(1) of the Act and, therefore, it had no jurisdiction to ask the Tribunal to state a case on a particular question of law; where the appellants themselves had never asked the Tribunal to refer such a question to the High Court and that even though it had directed the Tribunal under section 66(2) to refer the said question, as it had no jurisdiction to ask the Tribunal to refer the said question, it was not open to it to answer the second question which had been raised by the Tribunal at its instance and refused to answer it.

On a petition made by the appellants for leave to appeal to this court, the High Court granted a certificate that this was a fit case for appeal to this court and hence this appeal.

It may be mentioned at the outset that the assessment of the appellants by the Income-tax Officer was under section 23(3) and section 26-A of the Act. The

Messrs Mehta Parikh and Co, v.

The Commissioner

o/ Inconietax,

Bonibay

Bhagwati J.

books of account of the appellants were accepted by the Income-tax Officer and the only scrutiny made by the Income-tax Officer was whether at the relevant date, i.e. on 12th January 1946, the appellants had in their cash 61 notes of high denomination of Rs. 1,000 each.

The cash book entries from 20th December 1945 up to 18th January 1946 were put in before the Income-tax Officer and they showed that on 28th December 1945 Rs. 20,000 were received from the Anand Textiles, and there was an opening balance of Rs. 18,395 on 2nd January 1946. Rs. 15,000 were received by the appellants on 7th January 1946 from the Sushico Textiles and Rs. 8,500 were received by them on 8th January 1946 from Maniben, widow of Shah Maneklal Nihalchand. Various other sums were also received by the appellants from 2nd January 1946 up to and inclusive of 11th January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000 and were thus capable of having been paid to the appellants in high denomination notes of Rs. 1,000. There was a cash balance of Rs. 69,891-2-6 with the appellants on 12th January 1946, when the High Denomination Bank Notes (Demonetisa tiou) Ordinance 1946 was promulgated and it was the case of the appellants that they had then in their custody and possession 61 high denomination notes of Rs. 1,000, which they encashed through the Eastern Bank on 18th January 1946.

The appellants further sought to support their contention by procuring before the Appellate Assistant Commissioner the affidavits of Kuthpady Shyama Shetty, Geqeral Manager of Messrs Shree Anand Textiles, in regard to payment to the appellants of a sum of Rs. 20,000 in Rs. 1,000 currency notes on 28th December 1945, Govindprasad Ramjivan Nivetia, proprietor of Messrs Shusiko Textiles, in regard to payment to the appellants of a sum of Rs. 15,000 in Rs. 1,000 currency notes on 6th January 1946 and Bai Maniben, widow of Shah Maneklal Nihalchand, in r,; gard to payment to the appellants of a sum of Rs. 8,500 (Rs. 8,000 thereout being in Rs. 1,000 currency notes) on 8th January 1946.

The appellants were not in a position to give further

particulars of Rs. 1,000 currency notes received by them during the relevant period, as they were not in the habit of noting these particulars in their cash book and therefore relied upon the position as it could be spelt out of the entries in their cash book coupled with these affidavits in order to show that on 12th January 1946 they had in their cash balance of Rs. 69,891-2-6, the 61 high denomination currency notes of Rs. 1,000 each, which they en cashed on 18th January 1946 through the Eastern Bank.

Both the Inrome-tax Officer and the Appellate Assistant Commissioner discounted this suggestion of the appellants by holding that it was impossible that the appellants had on hand on 12th January 1946, the 61 high denomination currency notes of Rs. I ,000 each, included in their cash balance of Rs. 69,891-2-6.

The calculations, which they made involved taking into account all payments received by the appellants from and after 2nd January 1946, which were either multiples of Rs. 1,000 or were over Rs.1,000. There was a cash balance of Rs. 18,395-6-6 on hand on 2nd January 1946, which could have accounted for 18 such notes.

The appellants received thereafter as shown in their cash book several sums of monies aggregating to over Rs. 45,000 in multiples of Rs. 1,000 or sums over Rs. 1,000, which could account for 45 other notes of that high denomination, thus making up 63 currency notes of the high denomination of Rs. 1,000 and these 61 currency notes of Rs. 1,000 each, which the appellants encashed on 18th January 1946 could as well have been in their custody on 12th January

1946. This was, however, considered impossible by both the Income-tax Officer and the Appellate Assistant Commissioner as they could not consider it within the bounds of possibility that each and every payment received by the appellants after 2nd January 1946 in multiples of Rs. 1,000 or over Rs. 1,000 was received by the appellants in high denomination notes of Rs. 1,000 each. It was by reason of their visualisation of such .an impossibility that they negatived the appellants' contention. ' It has to be noted, however, that beyond these

Messrs Mehla Parikh and Co.

Tho Commissioner

of Income.ta~-.

Bombay

Bhagu•atl J,

1956 calculations of figures, no further scrutiny was made

Messrs Mehta by the Income-tax Officer or the Appellate Assistant Parikh and co. Commissioner of the entries in the cash book of the v. appellants. The cash book of the appellants was The Commissioner accepted and the entries therein were not challenged. of Income.tax, No further documents or vouchers in relation to those Bombay entries were called for, nor was the presence of the

BhagwatiJ. deponents of the three affidavits considered necessary by either party. The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Incometax Officer, who was present at the hearing of the appeal before the Appellate Assistant Commissioner, considered it necessary to call for them in order to cross-examine them with reference to the statements made by them in their affidavits. Under these circumstances it was not open to the Revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits.

This being the position, the state of affairs, as it obtained on 12th January 1946, had got to be appreciated, having regard to those entries in the cash books and the affidavits filed before the Appellate Assistant Commissioner, taking them at their face value. The entries in the cash books disclosed that, taking the number of high denomination notes at 18 on 2nd January 1946, there came in the custody or possession of the appellants after 2nd January 1946 and up to 12th January 1946, 49 further notes of that high denomination, making 67 such notes in the aggregate, out of which 61 such notes could be encashed by the appellants on 18th January 1946 through the Eastern Bank. A mere calculation of the nature indulged in by the Income tax Officer or the Appellate Assistant Commissioner was not enough, without any further scrutiny, to dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put ii1 by the appellants before the Appellate Assistant Commissioner.' The Tribunal also fell into the same error. It could

not negative the possibility of the appellant being in possession of a substantial number of these high denomination currency notes. It, however, considered that it was impossible for the appellants to have bad 61 such notes in the cash balance in their bands on 12th January 1946 and then it applied a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibility, excluding 30 such notes as not covered by the explanation of the appellants. This was pure surmise and had no basis in the evidence, which was on the record of the proceedings.

The High Court treated this finding of the Tribunal as a mere finding of fact.

The position in regard to all such findings of fact, as to whether they can be questioned in appeal, is thus laid down by the House of Lords in Cameron v. Prendergast (Inspector of Taxes)(1):

"Inferences from facts stated by the Commissioners are matters of law and can be questioned on appeal. The same remark is true as to the construction of documents. If the Commissioners state the evidence and hold upon that evidence that certain results follow, it is open to the Court to differ from such a. holding".

To the same effect are the observations of the House of Lords in Bamford v. Osborne (H. M. Inspector of

Taxes)(~):

"No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusions which are themselves conclusions of pure fact. But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners' conclusions".

The latest pronouncement of the House of Lords on this question is to be found in Edwards (Inspector of Taxes) v. Bairstow and Another(8). Viscount Simonds observed at page 586:-

"For it is universally conceded that, though it is

(1) [1940) 8 I.T.R. (Suppl.) 75, 81.

(2) (1942110 I.T.R. (Suppl.) 27, 84.

(3) [1955] 28 I.T.R. 579.

Me•srs Mehta Parikh and Co. v.

The Commissioner of Income-tax,

Bombay

Bhagwati J.

19J6

Messrs Mehta Par; kh and Co. v.

The Com1nissioner "\ o/ lnco111e .. tax,

Bomba1

BhagwatiJ.

a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained". and Lord Radcliffe expressed himself as under at page592:-

"If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene".

It follows, therefore, that facts proved or admitted may provide evidence to support further conclusions to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law. The court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.

The High Court recognised this position in effect but went wrong in applying the true principles of interference with such findings of fact to the present case.

The attempt which was made by the High Court to probe into the mind of the Tribunal hy trying to discard the affidavitofGovindprasad Ramjivan Nivetia in regard to the payment of Rs. 15,000 to the appellants in 15 currency notes of Rs. 1,000 each on 6th January 1946 and thus reducing the aggregate sum of Rs. 43,500 to Rs. 28,500 and justifying the figure of Rs. 31,000 arrived at by the Tribunal was really far-fetched and contrary to the terms of

SJ'1.R..

SUPR.EME COUR.'f REPOR.TS 637

the Tribunal's order itself, the Tribunal not having 7956 given any inkling, whatever, of what was at the back Messrs Mehta of its mind when it fixed upon the figure R.s. 31,000.

Parikh and co.

Really speaking the Tribunal had not indicated upon v. what material it held that R.s. 30,000 should be Tiie Commissioner treated as secret profit or profits from undisclosed of Income-tax, sources and the order passed by it was bad.

The Bombay appellants had furnished a reasonable explanation BhagwatiJ. for the possession of the high denomination notes of the face value of Rs. 61,000 and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs. 30,000.

The case was analogous to the one before the Patna High Court in Chunilal Ticamchand Coal Co. Ltd. v. Commissioner of Income-tax, Bihar and Orissa(1) and should have been similarly decided in favour of the appellants.

For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative. It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income-tax and Excess Profits Tax and Business Profit Tax purposes representing the value of the high denomination notes which were encashed on 18th , January 1946.

In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also. The answer to the first referred question being in the negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical.

The result, therefore, is that the appeal is allowed and the first referred question is answered in the negative. The appellants will have their costs here as well as in the High Court.

VENKATARAMA AYYAR J.-I agree to the order just proposed; but I prefer to rest my decision on the

(1) [1966] 27 I.T.R. 602,

7956 ground that the finding of the Tribunal that high

Messrs Mehta denomination notes of the value of Rs. 30,000 repre- Parikh and co. sented the concealed profits of the appellant is not v. supported by any evidence, and is, in consequence, The commissioner erroneous in point of law and liable to be set aside. of Income-tax.

The evidence on record has been exhaustively re- Bombay viewed in the judgment just delivered, and there is no BhagwatiJ. need to traverse the same ground again. To put the matter in a nut-shell, the accounts of the appellant have been accepted by the Tribunal as genuine, and it is impossible to say, having regard to the cash balance as shown therein, that the notes in question could not have been included therein. The Tribunal observes that it is unlikely that so many high denomination notes would have been held as part of the cash on hand for such a large number of days.

That, no doubt, is highly suspicious; but the decision of the Tribunal must rest not on suspicion but on legal testimony. For the respondent, Mr. Joshi contended that the cash balance shown in the books could not be accepted as true, because the appellant had ample time to rewrite the accounts, as the Ordinance was issued on 12th January 1946 and the year of account of the assessee was the Calendar year.

Whether the accounts are genuine or not is a pure question of fact, and a finding on a question of fact is as much binding on the Revenue as on the subject.

MEHTA PARIKH & CO

THE COMMISSIONER OF INCOME-TAX,

BOMBAY

S. R. DAS C.J.

BHAGWATI

Income-tax Act

ss. 62(2), 23(3), 26A

ss. 23(3) and 26

12th of January, 1946

20th December, 1945

18th January, 1946

28th December, 1945

6th of January, 1946

8th of January, 1946

s. 66(2)

BHAGWATI

VENKATARAMA AYYAR

R.J. Kolah

N. Shroff

G. N.Joshi

Porus A. Mehta

R.H. Dhebar

High Court of Bombay

section 66(1)

section 66

Ahmedabad

Bombay

12th January 1946

clause 6

18th January 1946

20th December 1945

1st January 1946

13th January 1946

Commissioner

of /11come-ta; r,

Bombay

8th January 1946

Income-tax Appellate Tribunal

section 66(1)

section 66(2)

section 66(2)

Mehta

section 66(1)

section 66(2)

section 23(3)

section 26

Messrs Mehta Parikh and Co

28th December 1945

Anand Textiles

2nd January 1946

7th January 1946

Sushico Textiles

Maniben

Shah

Maneklal Nihalchand

11th January 1946

Kuthpady Shyama Shetty

Govindprasad Ramjivan Nivetia

Shusiko Textiles

Bai Maniben

Shah Maneklal Nihalchand

12th January

1946

Mehla Parikh and Co.

BhagwatiJ.

Viscount Simonds

Mehta Par; kh and Co.

Radcliffe

Ramjivan Nivetia

s. 31

Parikh

s. 30

BhagwatiJ.

Patna High Court

18th , January 1946

Joshi