Subba Rao, J.- This is an appeal against the judgment of Ramaswami Goundar, J., winding up the General Bank, Ltd., and appointing two joint official liquidators. The General Bank, Limited, Madras, was registered on 12th November, 1935, as a private limited company under the Indian Companies Act. The share capital is ten lakhs divided into a A class shares of 9,000 at Rs. 100 each. The called and paid up capital of the said Bank is Rs. 1,09,500. Out of the total subscribed capital of Rs. 2,72,500 Narayana Aiyar and his sons and daughters owned shares of the value of Rs. 2,45,000. It is said that the holders of the remaining shares are also his close relatives or friends. It is therefore practically a family concern of Narayana Aiyar. From the inception of the Bank, Narayana Aiyar was the Managing Director till he died on 28th May, 1951. After his death, his second son, Venkatasubramania Aiyar, had been functioning as the Managing Director. Prior to the death of Narayana Aiyar two of his sons, P.N. Ramachandra Aiyar, the petitioner, and Eswara Aiyar, filed two suits for partition of the family properties. Eswara Aiyar instituted C.S. No. 367 of 1950 against his father and other members of the family. The petitioner filed O.S. No. 36 of 1950 in the Sub-Court, Calicut, for similar reliefs against his father and brothers. The said suit was transferred to this Court to be tried along with C.S. No. 367 of 1950 and was renumbered as C.S. No. 474 of 1950. The suits are not yet disposed of; but a number of applications are filed therein for suitable orders to safeguard the interests of the parties till the disposal of the suits. Along with plaint, C.S. No. 367 of 1950, Eswara Iyer filed an application No. 3354 of 1950 for the appointment of a receiver for the suit properties and other reliefs. A similar application was filed by the petitioner Ramachandra Aiyar in the transferred suit. Those applications were finally disposed of on 10th August, 1953, by a Division Bench of this Court consisting of Satyanarayana Rao and Chandra Reddi, JJ. The learned Judges with certain modifications confirmed the order of Krishnaswami Nayudu, J., appointing receivers in respect of some of the properties comprised in the subject-matter of the suits. Those applications were finally disposed of on 10th August, 1953, by a Division Bench of this Court consisting of Satyanarayana Rao and Chandra Reddi, JJ. The learned Judges with certain modifications confirmed the order of Krishnaswami Nayudu, J., appointing receivers in respect of some of the properties comprised in the subject-matter of the suits. But in regard to the deposits in the Bank in the name of Narayana Iyer, though they found that prima facie the plaintiffs in the two suits would be entitled to shares in them by reason of their being heirs of Narayana Iyer, they did not appoint a receiver in view of the fact that there was an order directing the liquidation of the Bank and that order was the subject-matter of an appeal. In disposing of the appeal, they made the following remarks in respect of the said deposits: "If a liquidator were to be appointed the liquidator will be in charge of the funds of the Bank and will collect the outstandings. The matter of providing safeguards for the interests of the members in respect of the deposits standing in the name of the 1st defendant in the Bank must be dealt with by a separate order after the result of the liquidation proceedings is known. If a liquidator is appointed there is no need to appoint a Receiver. If however a liquidator is not appointed the matter may be’ brought up again before this Court for necessary directions for taking steps to collect the fixed deposit amounts, realising the assets of the Bank and safeguarding the interests of the plaintiff and the other defendants." But pending the disposal of the main application for appointment of a receiver various applications were taken for safeguarding the amounts representing the deposits which have matured. Ramachandra Iyer filed Application No. 3715 of 1951 in C.S. No. 474 of 1950 to appoint a commissioner for taking charge of and realising the sum of Rs. 3,89,000 in deposit in the name of Narayana Iyer. To that application the General Bank, Ltd., was not a party. At first Venkatasubramania Aiyar agreed to give security but later on went back on his word. On 13th March, 1952, Panchapakesa Ayyar, J., appointed Sri L. V. Krishnaswami Ayyar, Advocate, as the commissioner for collecting the amounts standing to the credit of Narayana Aiyar and investing the same in the Imperial Bank of India. At first Venkatasubramania Aiyar agreed to give security but later on went back on his word. On 13th March, 1952, Panchapakesa Ayyar, J., appointed Sri L. V. Krishnaswami Ayyar, Advocate, as the commissioner for collecting the amounts standing to the credit of Narayana Aiyar and investing the same in the Imperial Bank of India. Krishnawami Iyer wrote to the Bank on 31st March, 1952, demanding payment of the moneys alleged to be due to Narayana Iyer. On 8th April, 1952, the Bank replied to him stating that they would be able to pay the said amount if further time was given. On 9th April, 1952, he made another demand on the Bank for payment of the amount standing in the name of Narayana Iyer but he did not receive any reply. So too, the widow of Krishna Iyer, the youngest son of Narayana Ayyar, filed an application, 924 of 1952, against Venkatasubramania Ayyar, the Managing Director, for directing him to deposit into Court the sum of Rs. 84,000, deposited in the Bank in her husband’s name. To that application the Bank was made a party. Panchapakesa Ayyar, J., ordered that application on 13th March, 1952, directing the Bank to pay the entire amount due to her on or before 10th April, 1952. Though this order had become final, the Bank did not comply with it. Meenakshi, the daughter of Narayana Ayyar, filed Application No. 4781 of 1951 in respect of a trust amount of Rs. 30,000. Panchapakesa Ayyar, J., made an order directing the Bank to deposit the said amount in Court by 13th March, 1952. The Bank failed to comply with that order either. As the orders of the Court were not complied with and as amounts were not deposited in Court, on 29th January, 1953, Panchapakesa Ayyar, J., made the following order in the three applications: "So, after considering everything it seems to me that the best course is to issue an injunction and a prohibitory order to the Central Bank of India, Limited, Madras, not to advance a pie more to the General Bank, Ltd., as overdraft on the Government Securities to the Bank without further orders of this Court which will be issued only after the sum of Rs. 4,42,000 directed to be deposited by the Bank is actually deposited. 4,42,000 directed to be deposited by the Bank is actually deposited. An injunction and prohibitory order will also issue to the Indian Bank, Ltd., Madras, regarding the Government securities of Rs. 75,000 pledged with it. An injunction will also issue against the General Bank and its Managing Director and Officials restraining them from paying any sums collected from the debtors of the bank to any creditors preferring them to other creditors till the Rs. 4,42,000 are deposited." The Bank filed O.S. Appeals Nos. 91, 92 and 93 of 1953 against the order of Panchapakesa Ayyar, J., in the said applications. On 23rd April, 1952, Ramachandra Ayyar filed O.P. No. 63 of 1953 on the file of this Court for winding up the Bank and for the appointment of an Official Liquidator. The application came up before our learned brother, Ramaswami Gounder, J. The learned Judge found that the petitioner made a lawful demand through Court on the Bank for the payment of the amounts due to him and they were not complied with and that the Reserve Bank of India certified that the Bank was unable to pay its debts. On those findings he held that the provisions of section 38 of the Banking Companies Act have been complied with and- therefore a case has been made out for winding up. He went further and found that he was also satisfied that the Bank was not fit to carry on its business as a Bank any longer and that on the facts this was a banking company which did not deserve to exist and the sooner it was wound up the better. The learned Judge therefore wound up the Bank and appointed two Advocates as Joint Liquidators. The Bank preferred the above appeal against that order. Mr. Viswanatha Ayyar raised two points questioning the correctness of the judgment of Ramaswami Gounder, J. 1. There was no lawful demand within the meaning of section 38 of the Banking Companies Act. 2. The Bank is now in a position to pay its debts and the finding of the Judge to the contrary is wrong. The material portion of the governing section 38 of the Banking Companies Act (Act X of 1949) reads:- 1. There was no lawful demand within the meaning of section 38 of the Banking Companies Act. 2. The Bank is now in a position to pay its debts and the finding of the Judge to the contrary is wrong. The material portion of the governing section 38 of the Banking Companies Act (Act X of 1949) reads:- 1. Without prejudice to the provisions contained in section 162 or section 271 of the Indian Companies Act, 1913 (VII of 1913), and without prejudice to its power under 37, the court shall order the winding up of a banking company if it is unable to pay its debts and the court shall also order the winding up of a banking company if the Reserve Bank applies in this behalf to the Court. * * * 3. Without prejudice to the provisions contained in section 163 of the Indian Companies Act, 1913 (VII of 1913) a banking company shall be deemed to be unable to pay its debts if it has refused to meet any lawful demand for payment made at any of its offices or branches within two working days, if such demand is made at a place where there is an office, branch or agency of the Reserve Bank, or within five working days if such demand is made elsewhere, and if the Reserve Bank certifies in writing that the banking company is unable to pay its debts. The Indian Companies Act, section 162, reads as follows:- A company may be wound up by the Court * * * (v) if the company is unable to pay its debts; (vi) if the court is of opinion that it is just and equitable that the company should be wound up. The Indian Companies Act, section 162, reads as follows:- A company may be wound up by the Court * * * (v) if the company is unable to pay its debts; (vi) if the court is of opinion that it is just and equitable that the company should be wound up. Section 163(1)(i) reads as follows:- "A company should be deemed to be unable to pay its debts if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company (by causing the same to be delivered by registered post or otherwise) at its registered office, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor." Section 163(2) of the Indian Companies Act reads as follows:- "The demand referred to in clause (i) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by an agent or legal adviser duly authorised on ha behalf, or in the case of a firm if it is signed by such agent or by a legal adviser or any one member of the firm on behalf of the firm." A combind reading of the aforesaid provisions indicate that a bank can be wound up if either of the conditions laid down in the Companies Act or in the Banking Companies Act are complied with. The conditions laid down in the Banking Companies Act are more stringent from the standpoint of the Bank. The Legislature obviously intended that a banking company should be more prompt in meeting demands and that any default made by it in that behalf should be a sufficient ground for winding up the company. Under the Companies Act a company can be wound up if the Judge comes to the conclusion that the company is unable to pay its debts. Section 163(1) introduces a fiction stating that if a bank does not pay the amount within three weeks from a demand made on it of a sum exceeding Rs. 500 the company shall be deemed to be unable to pay the debts. Section 163(1) introduces a fiction stating that if a bank does not pay the amount within three weeks from a demand made on it of a sum exceeding Rs. 500 the company shall be deemed to be unable to pay the debts. Under this section the demand shall be made by a creditor to whom the company is indebted by serving the same on the company by registered post or otherwise at its registered office. Questions arose whether an agent of a creditor can make such a demand and courts have taken the view that an agent cannot issue a demand within the meaning of the section. To get over the difficulty, the Legislature amended the section by adding sub-section (2) which enables a creditor to issue a demand through his agent or legal adviser. Learned counsel contended with considerable force that a demand made by a Commissioner appointed by the Court is not a lawful demand within the meaning of section 163. It is not necessary to express our final opinion on this question for the petitioner does not seek to bring in the demand made by the Commissioner under this section. He solely relies upon section 38 of the Banking Companies Act. There is a clear difference in the terminology used in section 38 of the Banking Companies Act and section 163 of the Indian Companies Act. It is not necessary to consider whether it is designed or accidental. The Court is concerned only with the express intention of the Legislature. The clause in section 38 of the Banking Act, viz.: “Without prejudice to the provisions contained in section 163 of the Indian Companies Act” can only mean that petitioner can rely upon either section 163 of the Indian Companies Act, or on section 38(3) of the Banking Companies Act. It cannot in our view compel a court to construe the provisions of section 38 (3) in the light of the provisions of section 163 by introducing any words found in section 163 into the provisions of section 38 (3). The two provisions are alternative. The petitioner could invoke the fiction if the conditions of either of the two sections are complied with. The two provisions are alternative. The petitioner could invoke the fiction if the conditions of either of the two sections are complied with. The question therefore is whether under section 38 (3) of the Banking Companies Act, a demand should be made by a creditor under his hand, or is it enough if a demand is made on his behalf. In the present case the Commissioner appointed by the Court made a demand for the payment of the amount due to the petitioner and others at the office of the Bank. The Bank did not pay that amount within two working days. The section does not say either expressly or by necessary implication that the demand should be under the hand of the creditor. We would therefore hold that the demand made by the Commissioner for the payment of the amounts due on behalf of the petitioner and others is a lawful demand, within the meaning of section 38 (3) of the Banking Companies Act, and that as the Bank did not comply with the demand within the prescribed time mentioned therein the Bank shall be deemed to be unable to pay its debts. Further the judgment of the learned Judge does not disclose that any such contention was raised before him. Though the contention that the demand was not lawful was advanced on other grounds, the objection that the demand was not under the hand of the creditor was not pressed before the learned Judge. Presumably it was not raised because other creditors who made such demands under their hand were ready to implead themselves as parties in case any such technical objection was raised. Indeed one of such creditors, who is one of the respondents before us represents through his advocate that he was always ready to come on record as a petitioner and that the appellant knew that fact and therefore did not take this plea. In these circumstances we are also not justified in allowing the appellant to raise a plea for the first time here to the effect that the demand not being issued directly by the creditor was not a lawful demand within the meaning of the Act. Apart from the fiction the learned Judge also held on the material before him that they were not in a position to pay the debts. Apart from the fiction the learned Judge also held on the material before him that they were not in a position to pay the debts. We have already noticed the various orders made by Panchapakesa Ayyar, J., in Applications Nos. 3715, 4438 and 4781 of 1951 and 924 of 1952. It is argued that the orders made by the learned Judge are contrary to the provisions of the Civil Procedure Code and are otherwise illegal. But the question is not whether those orders are illegal but whether the Bank was able to comply with those orders. It is not suggested that the Bank did not comply with the demands made by the Commissioner on the ground that the orders of the Court were illegal. The reason for the non-compliance was the incapacity to pay. Though sufficient time was granted, the Bank was not in a position to pay. Indeed before the learned Judge made his order dated 16th July, 1952, the learned counsel for the Bank suggested that Mr. L.V. Krishnaswami Iyer, the Commissioner, should continue to function for three months more to expedite the collection of moneys. It is therefore clear that though the Bank was directed to deposit Rs. 4,42,000 they were not able to deposit the same. The Commissioner submitted a report wherein he gave a concise picture of the financial condition of the Bank. The following facts could be seen from that report. Though under the rules the cash reserve to be maintained was Rs. 35,900, on 30th May, 1952, there was only a sum of Rs. 24,016-6-0. The assets position as on 28th May, 1952, as per the books of the bank was as follows: Not sued upon Sued upon I. Unsecured loans ... 58,304- 4- 0 92,485- 2- 4 II. Unsecured overdue bills ... 1,09,348-11- 6 1,46,875-13-11 III. Secured loans ... 76,933- 7-10 1,24,230-15- 0 IV. Secured overdue bills ... 19,452-11- 0 2,832- 7- 0 V. Secured current bills ... 11,500- 0- 9 - VI. Unsecured current bills ... 12,100- 0- 0 - Out of the amounts sued upon Rs. 70,744-10-6 were dues from debtors who were adjudicated insolvents. VII. Government securities (i) 3 per cent. Madras Loan face value ... 2,500-0-0 (ii) 3 per cent. do. ... 2,00,000-0-0 The Bank had liabilities of the extent of eight lakhs. 11,500- 0- 9 - VI. Unsecured current bills ... 12,100- 0- 0 - Out of the amounts sued upon Rs. 70,744-10-6 were dues from debtors who were adjudicated insolvents. VII. Government securities (i) 3 per cent. Madras Loan face value ... 2,500-0-0 (ii) 3 per cent. do. ... 2,00,000-0-0 The Bank had liabilities of the extent of eight lakhs. The Bank was able to realise from 24th April, 1952, up to 8th July, 1952, a sum of Rs. 3,101-4-1 and the expenses for the maintenance for six months ending 30th June, 1952, amounted to Rs. 7,345-7-3. The Commissioner also records that on none of the occasions on which he had been to the bank did he see any constituent transacting any business with the Bank. It would be apparent from the aforesaid report that there were large unsecured loans out of which considerable amounts were due from creditors who became insolvents. It is seen that the margin between the securities given to the Indian Bank and Central Bank and the amounts borrowed from them is very narrow. It is also clear that no business is being conducted and the realisations are little or negligible. Notwithstanding the demands of the Commissioner, he was not able to make the Bank deposit the amount due to the plaintiffs in the suit. The correctness of the statement of the Commissioner was not questioned before he learned Judge. The Reserve Bank of India after making the necessary enquiry submitted a report to the Court that the Bank was not in a position to pay its debts. Learned counsel stated that most of the creditors were his relatives and that they could not press for their debts till the assets were realised and therefore there is no necessity to wind up the company. But the creditors who appear before us represented by learned counsel supported the petitioner. To sum up, the Bank is not now doing any business. Its liabilities are about eight lakhs. The creditors are now making demands for payment, but the Bank admittedly is not now in a position to pay them. Though large outstandings are shown and though some action was taken in regard to some, the Bank is not able to collect more than a few thousand rupees. The demands of the creditors made through Court and outside were not met. Though large outstandings are shown and though some action was taken in regard to some, the Bank is not able to collect more than a few thousand rupees. The demands of the creditors made through Court and outside were not met. The Commissioner’s report and the Reserve Bank’s report show beyond doubt that the Bank was not in a position to pay its debts. On the material placed before the learned Judge he could not come to any other conclusion than that to which he arrived, namely, that the Bank was not in a position to pay its debts. But it is said that the learned Judge indicated his mind to dispose of the case only on the question of law and that he did not take any other evidence which if taken, would have proved that the Bank was in a position to pay its debts. This fact was denied by all learned counsel appearing for the respondents. The judgment does not disclose that the learned Judge prevented the appellant from placing any other material before him. No case therefore has been made out for remand, for giving a fresh opportunity to the appellant to place other material before the Judge. For the aforesaid reasons we agree with the learned Judge that this is a clear case where the appellant is unable to pay its debts, within the meaning of section 38(1) of the Banking Companies Act. For the aforesaid reasons we agree with the learned Judge that the Bank should be wound up and liquidators appointed. The appeal fails and is dismissed with costs. O.S. Appeals Nos. 85, 91, 92, 93 of 1953.-In view of our judgment in O.S. Appeal No. 94 of 1953, it is not necessary to consider these other appeals. They are dismissed but without costs. K.S. ----- Appeals dismissed.