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1971 DIGILAW 310 (KER)

SBT v. VASUDEVAN PILLAI

1971-11-24

P.UNNIKRISHNA KURUP, T.C.RAGHAVAN

body1971
Judgment :- 1. The decreeholder, the State Bank of Travancore, is the appellant. The Bank obtained a decree in O. S. No. 89 of 1962 on the file of the Sub Court, Kottayam for recovery of Rs. 13,954.07 with interest and costs against the respondent, and when execution was taken, the respondent filed E. A. No. 91 of 1971 under Act 11 of 1970 praying for determination of the amount due from him and also for allowing him to pay the amount in instalments. The appellant objected to the reliefs claimed in E. A. No. 91 of 1971 on the ground that the debt is due to the State Bank of Travancore which is a subsidiary bank to the State Bank of India, coming within the exemption under S.2(4)(a)(ii) of Act 11 of 1970. The court below, relying on the proviso to S.2(4)(a)(ii), held that transfer of assets in favour of the appellant-Bank was an assignment, and therefore the exemption was not available to the appellant Bank. It is the correctness of this finding that is challenged in this appeal. 2. It is common case that the debt was due originally to the Kottayam Orient Bank Ltd. The Reserve Bank of India, in exercise of the powers conferred by sub-section 4 of S.45 of the Banking Companies Act, 1949 (10 of 1949), directed the amalgamation of the Kottayam Orient Bank Ltd. with the State Bank of Travancore under a scheme prepared by them. By virtue of the amalgamation, the assets and liabilities of the Kottayam Orient Bank Ltd. became vested in the State Bank of Travancore and it was by reason of this amalgamation that the appellant-Bank derived the right to file the suit against the respondent. Under S.2(4) of Act 11 of 1970, a debt has been defined as "any liability in cash or in kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act (11 of 1970), whether payable under a contract or under a decree or order of any court or otherwise". Under sub-clause (a) (ii) of that sub-section, the following class of debts has been excluded from the definition of debt. Under sub-clause (a) (ii) of that sub-section, the following class of debts has been excluded from the definition of debt. "(a) any sum payable to (ii) the Reserve Bank of India or the State Bank of India or any subsidiary bank within the meaning of clause (k) of S.2 of the State Bank of India (Subsidiary Banks) Act, 1959, or the Travancore Credit Bank (in liquidation) constituted under the Travancore Credit Bank Act, IV of 1113: Provided that the right of the bank to recover the sum did not arise by reason of any assignment made subsequent to the 1st day of July, 1957." The question that directly arises for consideration is whether the right to recover the sum by the appellant-Bank by reason of the amalgamation of the Kottayam Orient Bank Limited with the appellant-Bank was derived under an assignment made subsequent to the 1st day of July 1957 or under a transfer by operation of law. The lower court thought that the intention of the legislature was to confer the benefits of Act 11 of 1970 on agriculturist-debtors notwithstanding the amalgamation, whether compulsorily or voluntarily, made after the 1st day of July 1957 and that if the intention were otherwise, that could have been made clear by stating that voluntary assignments alone are brought within the purview of the proviso. 3. The Central Government Notification sanctioning the amalgamation of the Kottayam Orient Bank Limited with the State Bank of Travancore was published in the Gazette of India Extraordinary, dated 16th May 1961 and shows that on the application of the Reserve Bank of India under sub-section 1 of S.45 of the Banking Companies Act, 1949 the Central Government bad made an order of moratorium in respect of the Kottayam Orient Bank Limited under sub-section 2 of S.45. It further shows that thereafter under sub-section 4 of S.45 of the said Act the Reserve Bank bad prepared a scheme for the amalgamation of the Kottayam Orient Bank Limited with the State Bank of Travancore and that the suggestions and objections raised by the two banking institutions had been considered as provided by sub-section 6 of S 45 and thereafter the Central Government bad sanctioned the Scheme in exercise of the powers conferred by sub-section 7 of S.45 of that Act. The result of an amalgamation is indicated in sub-section 9 of S.45. The result of an amalgamation is indicated in sub-section 9 of S.45. It provides that on and from such date as may be specified by the Central Government, the properties and assets of the Banking Company shall stand transferred to and vest in the transferee Bank and also the liabilities of the Banking Company would become the liabilities of the transferee-Bank. These provisions clearly indicate that the transfer of the assets and liabilities is by operation of law and not by any voluntary act of the parties. 4. It may be noted that under S.44-A, the amalgamation of two Banking Companies can take place on a resolution approved and passed by a majority, in number, representing 2/3 in value of the shareholders of each of the said Companies. There would have been some force in contending that, in such cases there is a voluntary amalgamation in the sense that it is by reason of a deliberate act of the two Banks that the amalgamation takes place. But, under S.45 the amalgamation is effected compulsorily as a result of a recommendation made by the Reserve Bank of India on being satisfied that in the public interest or in the interests of the depositors or for a proper management of the Banking Company, an amalgamation of the Company with any other banking institution is necessary. It is under S.45 that the amalgamation has been effected between the Kottayam Orient Bank Limited and the State Bank of Travancore and it is therefore clear that there has been no voluntary transfer of assets by the Kottayam Orient Bank Limited, in which case alone there could be an assignment. The lower court is clearly in error in thinking that the transfer took place as a result of an assign-meat. 5. In Webster's Third International Dictionary, the word 'assign' has been defined as 'to transfer to another in writing one's title or interest in the property'. In Sailendra Kumar Roy v. Bank of Calcutta, Ltd. (AIR. 1948 Calcutta 131) Chakravartti J., referring to 0.21 R.16 of the Civil Procedure Code, pointed out that a transfer by operation of law could take place on death or by devolution or by succession and that in these instances there was no transfer by assignment. In Sailendra Kumar Roy v. Bank of Calcutta, Ltd. (AIR. 1948 Calcutta 131) Chakravartti J., referring to 0.21 R.16 of the Civil Procedure Code, pointed out that a transfer by operation of law could take place on death or by devolution or by succession and that in these instances there was no transfer by assignment. The facts of that case indicate that the transfer there took place by virtue of an order under S.153-A of the Indian Companies Act sanctioning a scheme of amalgamation of Jessore Loan Company with the Bank of Calcutta Limited. That order provided for the transfer to the Bank of Calcutta of all the assets and liabilities of the Jessore Loan Company in accordance with the scheme of amalgamation and the question which arose for consideration was whether the transfer was by assignment or whether it was by operation of law. As stated earlier, it was held that the transfer was by reason of an order of the court and, therefore, was effected by operation of law and not by an assignment. 6. The Supreme Court while approving the observations of Chakkravartti J., pointed out in Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd. (AIR. 1955 S.C. 376) that the transfers by operation of law were not intended to be confined to the three cases of death, devolution or succession and that there could be transfers by operation of law in various other ways too. As instances, the Supreme Court pointed out that when a person is adjudged insolvent, his properties vest in the Official Assignee and the transfer is brought about by operation of insolvency laws which have been codified. Similarly, the court-sale of property in execution of a decree vests the right, title and interest of the judgment-debtor in that property in the auction-purchaser thereby effecting a transfer by operation of law embodied in the Code of Civil Procedure. The court finally observed that: "It is neither necessary nor profitable to try and enumerate exhaustively the instances of transfer by operation of law. Suffice it to say that there is no warrant for confining transfers 'by operation of law to transfers by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. Suffice it to say that there is no warrant for confining transfers 'by operation of law to transfers by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property by operation of law' all that is necessary is that there must be a passing of one person's rights in property to another person by the force of some law, statutory or otherwise". 7. It will be clear from the above discussion that the transfer of the assets belonging to the Kottayam Orient Bank Limited in favour of the State Bank of Travancore was by reason of operation of law and not by an assignment. By reason of the operation of sub-section 9 of S.45 of the Banking Companies Act, the assets of the Kottayam Orient Bank became vested in the State Bank of Travancore and the transfer is not effected by an assignment in which case alone it would come within the mischief of the proviso to S.2 (4) (a) (ii). 8. A Division Bench of the Madras High Court in Merchants Bank Ltd. v. Dharmasambarthani Ammal (AIR. 1966 Madras 26) has held that where under a scheme of amalgamation brought about by the Government of India under which transfer of assets took place, the transfer is by operation of law, which necessarily means that it is not under an assignment. We do not think it necessary to refer to other decisions cited at the bar since the position is clear that the transfer of assets in this case is not by reason of any assignment within the meaning of S.2 (4) (a) (ii) proviso. 9. The order of the court below is wrong and is therefore set aside. The appeal is allowed, but in the circumstances of the case there will be no order regarding costs.