H. L. ANAND, J. ( 1 ) THESE applications u/s 45-D of the Banking Regulations Act, 1949 by a Bank, in liquidation, against a joint stock company, in liquidation, and another joint stock company, which claims to be its creditor, are based on. disputes between the Bank, on the one hand, and the company in liquidation and its creditor on the other, as to the nature of the indebtedness of the company in liquidation to the Bank, the identity of the assets by which the debt purported to be secured, and raise some interesting questions with regard to limitation and certain provisions of the Banking Regulation Act. ( 2 ) IDEAL Bank Ltd. , now in liquidation, for short, the Bank, was carrying on the business of banking, inter alia, in Delhi. Pride of India Pictures Ltd. also in liquidation, for short the Company, respondent No. I, was a company carrying on business of exhibition of cinematographic films, inter alia, in Meerut and Hardoi. In the year 1946, the Company opened a cash credit account with the Bank in Delhi with a sanctioned limit of Rs. 1 lakh, against the security of its assets and by a written instrument of March 26, 1946, the company purportedly created a "pledge" of its various assets in favour of the Bank to secure the repayment of the outstanding in the account. Certain other documents are also said to have been executed to secure the repayment. Subsequently the company offered additional security of shares in Vanguard Insurance Company Ltd. The charge was apparently confirmed by the Insurance Company. In 1952, a sum of over Rs. I lakh was said to be outstanding in the account and on default in repayment, the Bank sought the winding up of the Company on the ground of its inability to pay. The petition was resisted on the ground that the debt was bona fids disputed. The plea of the company was turned down and the company was ordered to be wound up. In 1954, the Bank was also ordered to be wound up on its own petition and both have since been in liquidation. The petition was resisted on the ground that the debt was bona fids disputed. The plea of the company was turned down and the company was ordered to be wound up. In 1954, the Bank was also ordered to be wound up on its own petition and both have since been in liquidation. ( 3 ) IT appears that sometime in September, 1950, the Company borrowed large sums of money from Adarsh Films Ltd. , respondent No. 2, for short the creditor, against the mortgage of its assets, apparently, including some of the assets which had already been pledged with the Bank. The arrangement visualised that the creditor would run two cinemas of the company and would get possession of the cinemas, and other assets for a period of four years from the date of the mortgage or for such longer period as may be necessary to recover the outstandings. There is considerable dispute if the creditor rendered proper accounts to the company and as to the precise liability of the company and the status of the assets held by the creditor pursuant to the aforesaid arrangement. It, however, appears that at one stage in the year 1955, the District Judge, who was then dealing with the liquidation of the company, ordered an investigation with regard to the precise indebtedness of the company to the creditor but it proved abortive. In December, 1970, the Official Liquidator of the Company sought permission of the District Judge to enter into a compromise with the creditor ia terms of which all the assets of the company, held by the creditor and said to be of the value of Rs. 34,000 were to be set off, against the oatstanding of the creditor which were then claimed to be of the order of over Rs. 66,000. The compromise contained certain other provisions. ( 4 ) IT is at this stage that the Bank filed the preseat applications in this Court-C-A. 327172 under Section 45-D of the Banking Regulations Act, 1949, claiming a sum of Rs. 1,16,000 and odd from the company and another, being C. A. 322|72, under Section 45-D (7) of the Act claiming a right to the assets of the Company in the handset the creditor, challenging the validity of the compromise sought to be -effected and seeking a stay of the proceeding before the District Judge. 1,16,000 and odd from the company and another, being C. A. 322|72, under Section 45-D (7) of the Act claiming a right to the assets of the Company in the handset the creditor, challenging the validity of the compromise sought to be -effected and seeking a stay of the proceeding before the District Judge. Both the applications were filed on the same date. Notices of the applications were issued tome company as also to the creditor and the proceedings before the District Judge "in the compromise were stayed. The applications were resisted by the company as also the creditor on a number of grounds, including the plea of limitation and the jurisdiction of this Court. The questions of limitation and jurisdiction were tried as preliminary issues. I, however, found that on the then state of the pleadings and the material available it was not possible to decide the questions of limitation and jurisdiction satisfactorily and expressed the view that it would not be proper to decide these questions without giving an opportunity to the parties to produce evidence, as indeed, the liberty to seek amendment of the pleadings. In my order of July 30, 1979, it was further pointed out that the claim was admittedly out of time On the date of winding up of the Bank but could be saved by the admitted cheque payment made in 1949. It was further pointed out that the question whether the payment could save the claim for the payment order simpliciter or the claim for the enforcement of the security depended in the first instance, on the existence, effect and validity of the pledge, which are in dispute, and secondly, on the way one looked at the relief claimed in C. A. 327, and the other application, C. A. 322172. It was also pointed out that prima facie the first of these applications merely sought a simple paymeftit order without purporting to enforce the security, while the other application sought certain orders to preserve the securities without the specific enforcement of it. I have since allowed the Bank to amend each of these applications so as to bring out the real questions in controversy between the parties. ( 5 ) ON the amended pleadings of the parties, following issues were framed: 1. Whether the petitions are barred by time ? 2. Whether this Court has no jurisdiction to entertain the petitions ? I have since allowed the Bank to amend each of these applications so as to bring out the real questions in controversy between the parties. ( 5 ) ON the amended pleadings of the parties, following issues were framed: 1. Whether the petitions are barred by time ? 2. Whether this Court has no jurisdiction to entertain the petitions ? 3. Whether there was any valid and subsisting pledge in favour of the bank and if so in respect of what property ? 4. Whether CA 327/72 seeks to enforce any pledge ? 5. To what relief, if any, is the Bank entitled and against whom ? ( 6 ) IN support of rival contentions, further material has been placed on record by the parties and I have since heard counsel for the parties at considerable length on the various questions that arise for determination. ( 7 ) MY conclusions on these issues are as follows. ( 8 ) THIS issue is. basic and is based on the plea that there was no valid and subsisting pledge in favour of the bank and that, in any event, there was no indication as to the property which formed its subject-matter. This issue is crucial not only with regard to the moderation of relief but also the outcome of the issue would also be determinative of the question if the claim is barred by time. It was not disputed that if the claim was an unsecured debt, it was out of time in spite of admitted acknowledgement when the Bank was ordered to be wound up, and that if it was a secured debt, it was within time, having regard-to the acknowledgement and the provisions of the Banking Regulations Act. ( 9 ) WAS there a valid and subsisting pledge in favour of the Bank and, if so, to what property of the company did it relate, are the two. questions that must be answered first ( 10 ) THE claim of the Bank that the outstanding balance in the cash credit account was secured by the pledge of the assets of the company was sought to be substantiated by the statement of P. W. 1, W. C. Khurana, aformer Managing Director of the Bank and its voluntary liquidator, and a number of documents executed by the company, the execution and genuineness of which was attested to by the witness. Ex P-14 purports to be an agreement on a stamp paper signed on behalf of the Bank and the company and by this agreement dated March 26, 1946, it was agreed between the Bank and the company that the cinematographic films and prints together with exhibition rights thereof, publicity material and the assets of Novelty and Mayfair cinemas at Meerut and property rights of Vijay Talkies and Laxmi Talkies, Hardoi and uncalled capital of the company, present and future and stock in trade, together with the receipts of the company by way of share money, booking money, etc. etc. were pledged with the Bank and shall be considered to be in the exclusive possession and under the exclusive control of the bank and be held as security for the due payment by the company of the balance in the cash and current account. By this. agreement, the company bound itself not to pledge or otherwise charge or encumber any of the assets not to permit any act whereby the security may in any way be prejudicially affected. The agreement further provides that the company would-render full account to the Bank of the receipts from and by way of exhibition of the pictures pledged with the bank and the securities would be duly insured. There are other provisions in the agreement with regard to the margin and certain other matters which are not relevant for our present purpose. By Ex. P-12, the company undertook to deposit all monies received by it in terms of the agreement. By Ex. P-13, company assured the Bank that the aforesaid deed would be duly registered with the Registrar within 2 weeks and the company would submit a weekly statement of account of the cinemas at Meerut and that certain other provisions -would also be made which were required by the -Bank for the operation of the cash credit account. This letter is of January 6, 1947. By Ex. P-ll,which is of March 25, 1946, the company requested the Bank to make certain transfers. out of the cash credit account and confirmed that the total amount of the debit of the company would come to Rs. I lakh. Ex. P-16, P-17 and P-18 are lists of machinery, furniture, etc. in Novelty, Meerut, Jagat theatre and Mayfaif theatres respectively, and these bear the signature of the partner of Nafegs Corporation, the managing agents of the company. I lakh. Ex. P-16, P-17 and P-18 are lists of machinery, furniture, etc. in Novelty, Meerut, Jagat theatre and Mayfaif theatres respectively, and these bear the signature of the partner of Nafegs Corporation, the managing agents of the company. Ex P-15 is the company s letter of April 5, 1946 asking the bank for delivery of certain publicity material in respect of some pictures apparently forming subject matter of the pledge. By Ex P-24 the Vanguard Insurance confirmed the lien on the shares in favour of the Bank. ( 11 ) ON the basis of this material, it was hardly possible for the company or its creditor to cast any doubt on the existence of a cash credit account secured by number of assets of the company or to dispute that the company was liable to the Bank on the material date for the amount outstanding against it in the A cash credit account. These docoments, however, are far from being free of a number of infirmities and the company and its creditor naturally sought to take full advantage of these infirmi- ties to defeat the claim of the Bank on the ground that there was no valid or subsisting pledge in favour of the bank and there was no indication in these documents as to the assets which formed subject-matter of the securities. ( 12 ) IN the first instance, it was urged that the agreement, Ex. P-44, was ineffective in that it, was not registered with the Sub-Registrar, even though it purported to affect unmovable property of the Company and to create a charge over its assets. There is no substance in this contention. Ex. P-14 does not purport, on its terms or in the context of any other material, to deal with any immovable property of the company. It was in fact conceded that the company had no immovable property among its assets at any stage and held that various cinemas on leasband the leaser-hold rights in the various cinemas were not specifically made part of the agreement, even though E there are vague references in the dodument to "property rights". Such a document, therefore, did ncrtneed to be registered since it did not purport to transfer any interest in any immovable property of the company. Such a document, therefore, did ncrtneed to be registered since it did not purport to transfer any interest in any immovable property of the company. It is interesting to notice in this context that the Bank had laid QO claim to the lease-hold rights in any of the cinemas and the claim for the enforcement of. the securities isf confined t (t the assets of the company consisting of machinery, equipment, furniture, fittings, fixtures, cinematographic films, prints, exhibition rights, publicity material, stock in trade and certain other assets. It is, therefore, not possible to hold that OB account of non-registraticto of the document, there was no valid orsubststing pledge of the assets of the company in favour of the Bank. 12-A. Secondly, it was urged that the charge created by Ex. P-14 over the various assets of the company bypledge, etc. be- came void as against the official Liquidator of the Company and its creditor on the order to wind up the company by virtue of Section 125 of the Companies Act as the charge was not registered with the Registrar of Companies. It was not disputed on behalf of the Bank that the charge was never registered and the challenge to its validity, therefore, appears to be formidable at first sight. It, however, does not survive closer scrutiny. A charge by way of pledge is outside the provision of. Section 125 and this is made clear by Section 125 (4) (e ). It was, however, not disputed that some of the items, which were made subject-matter of the charge, line the uncalled capital, would, however, be within the mischief of the Section. "the operation of Section 125, however, appears to be saved by virtue of the non-obstante clause of Section 45-A and more specifically by the language of Section 45-D and in particular sub-section (4) of it. Section 45-A of the Banking Regulation Act provides that the provisions of Part III-A of the Act dealing with Winding up of banking companies, would override other laws. Section 45-D provides that "notwithstanding anything to the countrary contamed in any law, for the time being in force," High Court may settle in the manner provided the list of debtors of a banking company which Is being wound up. Section 45-D provides that "notwithstanding anything to the countrary contamed in any law, for the time being in force," High Court may settle in the manner provided the list of debtors of a banking company which Is being wound up. Subsection (4) of this Section further provides that at the time of such settlement, "the High Court shall pass an order for the payment of the amount due by each debtor and make such further orders as may -be necessary in respect of the relief claimed, including reliefs against any guarantor or in respect of the realisation of any security. " The expression "any security" in subsection (4) of Section 45-D would be wide enough, having regard to the scheme of Part. III-A, the non-obstante clause in Section 45-A and the phraseology of Section 45-D, to include security charge in respect of which is hit by Section 125 of the Companies Act. This would also be consistent with the purpose for which the special provisions were made in the Banking Regulations Act. ( 13 ) IN the third instance, it was contended that in the absence of schedules A to E, referred to in the document. Ex P-14, it was not possible to establish the identity of the various items of assets sought to be pledged or charged and for that reason also it could not be said that there was a valid or subsisting pledge in respect of the assets of the company. Now, this is true that the agreement gives the description of the various heads of assets and contemplates that they are more specifically listed in the Schedules, said to form part of the agreement, but the Schedules are not available apparently having been misplaced during the partition since the Bank was a muslim concern. The Bank has, however, been able to salvage three lists referred to above. Ex P-16, P-17 and P-18, which purport to be lists of machinery, furniture, etc. in three of the cinemas mentioned above. The absence of the Schedules, however, does not render the agreement ineffective nor does it cease to be valid or subsisting for that reason. This is because the document itself contains sufficient description of the assets so as to identify the same even without further details, which were intended to be set out in the Schedules. The absence of the Schedules, however, does not render the agreement ineffective nor does it cease to be valid or subsisting for that reason. This is because the document itself contains sufficient description of the assets so as to identify the same even without further details, which were intended to be set out in the Schedules. It is quite possible that the description of the assets in the document rendered the Schedules quite unnecessary and the same may not even have been drawn. It is Interesting to notice in this context that there is no indication in the agreement if any of the assets of the company had been mortgaged, pledged or hypothecated earlier with any Bank or creditor. There are also references in the agreement that the company would reader true and proper account of virtually all its dealings to the Bank and that the company would hold these assets as the trustee of the Bank during the operation of the cash credit account. From the tenor of the document, it appears, as is also consistent with the normal practice, that the. balance in the account was intended to be secured by all the moveable assets of the company and the agreement is sufficiently descriptive of these assets even in the absence of the Schedules or the lists. The Schedules would have been of some consequence if the pledge was to be limited to some of the assets and the fact that the company has not been able to produce Its copy of -the Schedules? fortifies the belief that there was no limit on the assets sought to be offered as security. I have, therefore, no hesitation in holding that the balance in the cash credit account was secured by all the assets, which are described in the document. In any event, I fail to see how in the absence of Schedules, the agreement could be said to be either invalid or ineffective so long as the various assets are adequately described and could, reasonably be identified. Some of these assets are in any event, beyond controversy such as uncalled capital of the company, present and future, receipts of the company by way of share money, booking money, cinematographic films, prints, exhibition rights and publicity material, machinery, equipmant, furniture, etc. in the various cinemas, which are specifically mentioned. Some of these assets are in any event, beyond controversy such as uncalled capital of the company, present and future, receipts of the company by way of share money, booking money, cinematographic films, prints, exhibition rights and publicity material, machinery, equipmant, furniture, etc. in the various cinemas, which are specifically mentioned. Even if the absence of the Schedules may perhaps have some effect on the relief that may eventually be granted to the Bank against the creditor of the company, an aspect which I would deal with later, there is no ground to hold that for any reason, the agreement is not valid of is not subsisting or that there is no indication as to the assets which were offered by way of security. ( 14 ) LASTLY, it was urged that there was no valid pledge because no part of the assets were physically delivered by the company to the Bank and that one of the essential conditions of a valid pledge was, therefore, not satisfied. It was further urged that some of the assets described in the agreement could not possibly have formed subject-matter of the- pledge at all. Now, this was not disputed that none of the assets sought to be pledged were delivered to the Bank at any stage nor was it disputed that the uncalled capital of the company and the receipts of share money or booking money could not have formed subject-matter of a "pledge" though these could be validly made subject-matters of charge. This contention, however, ignores the provision of the agreement that all the items of security would be "considered to be in the exclusive possession and under the exclusive control of the bank in such a manner that such possession and control shall be apparent and indisputable. " This clearly changed the relationship between the assets and the company and on the execution of the agreemeat, the company continued to hold the assets not in its capacity as its owner but as a trustee for the bank. This was enough to constitute constructive delivery of the pledged goods to the Bank, even, though actual delivery was never made. . The constructive delivery coupled with the agreement conferred on the Bank the special property in the pledged goods and the requirements of a valid pledge were, therefore, fully satisfied. This was enough to constitute constructive delivery of the pledged goods to the Bank, even, though actual delivery was never made. . The constructive delivery coupled with the agreement conferred on the Bank the special property in the pledged goods and the requirements of a valid pledge were, therefore, fully satisfied. In any event, mortgage of moveable property is a recognised form of hypothecation and such hypothecation confers a good title upon the persons in whose favour it is made even in the absence of possession and the law recognises the transaction as security and equity gives effect to it. (1) It has been recognised. that such a transaction is not only valid. but is customary throughout the country and even resorted to by Banks with a view to enable the pledgers to carry on business with the pledged property. (2) It is well known that hypothecation is one of the species of a pledge and it is immaterial if possession is, in fact, delivered or not and in all cases of pledge and hypothecation, there is the right to take possession and dispose of the property forming subject-matter of contract. For all these reasons, it could not be said that there was no valid pledge or that the debt was not fully secured. It is, however, true that there could be no pledge or hypothecation in respect of the share money, booking money and the uncalled capital of the company and the only effect of the agreement in relation to these-assets was the creation of a charge in favour of the Bank over these rights. ( 15 ) FOR all these reasons, the issue must be answered in the affirmative and I hold that all the assets of the company were pledged/hypothecated or charged but excluding the lease-hold rights in the various cinemas and the debt was fully secured. ISSUE NO. 4. ( 16 ) THIS issue is based on the averment that C. A. 327 (72 embodies a claim simpliciter for the recovery of money or for settlement but does not seek to enforce any security. ( 17 ) AS has been pointed out above, C. A. 322 and C. A. 327 were filed simultaneously in this court when a compromise was sought to be effected between the company and its creditor. ( 17 ) AS has been pointed out above, C. A. 322 and C. A. 327 were filed simultaneously in this court when a compromise was sought to be effected between the company and its creditor. C. A. 327 in its original form merely sought an order for thecompany to pay the outstanding of the Bank. In the course of the application, it was mentioned that the outstanding was a "secured debt" and that the company had pledged all its assets, including uncalled capital as security for payment of balance but the application did not contain prayer for the enforcement of the security, except in Col. 12 of the printed opening sheet. C. A. 322, however, even in its orignal form sought to enforce the security in that a direction was sought against the creditor- to deposit all realisations made by it on the ground that the creditor had been in possession of the assets pledged with the Bank. The creditor had been impleaded as partly respondent in both the applications. In C. A. 327/72 the Bank had directed the other application in para (3) as "the Main Petition It is, however, true that the applications were not happily worded and there was, therefore, some justification for the respondents to urge that there was no attempt to enforce the securities by any of these applications even though the factum of pledge was mentioned in both the applications and permission of the Court was sought to preserve the securities in. C. A. 322. The position has, however, since changed because while considering the question of limitation and jurisdiction as a preliminary issues, I found that the state of the pleadings was not happy. The applications have, however, since been amended with the leave of the Court and the amended C. A. 327 in term, seeks the relief of enforcement of the securities for the payment of the bank s outstandings. The applications have, however, since been amended with the leave of the Court and the amended C. A. 327 in term, seeks the relief of enforcement of the securities for the payment of the bank s outstandings. It is true that the form in which the security is sought to be enforced still does not conform to the strict requirement of the Code of Civil Procedure but to my mind, that would not stand in the way the Company court to give an appropriate relief where the Bank manifestly intendg to secure the enforcement of the security for the realisation of its outstariding against the borrower the is not asuit on a mortgage or for the enforoement of a pledge. Section 45-D does not prescribe any particular form. Sub-section (4) merely empowers the Court to make "such further orders as may be necessary ia respect of the relief claimed, including reliefs against any guarantor or ill respect of the realisation of any security". It is, therefore, not possible to hold that C. A. 327 does not seek to enforce any security and the issue is answered accordingly. ISSUE NO. I ( 18 ) THIS issue raises a question, if the claim is barred by time. The agreement of pledge is of March 26, 1946. The Bank was wound up in July, 1954. The applications were filed in May, 1972. The period of limitation stopped running after the winding up order by virtue of Section 45-0 of the Banking Regulations Act. The claim, horwever, had become barred by time before the order of winding up unless the period is extended by an acknowledgement or payment, before the expiry of limitation. There was In undisputed payment by the company to the Bank on October 29, 1949. This extender the limitation only by 3 years if the acknowledgement was the acknowledgement of liability but if the acknowledgment also enured for the benefit of the security, then the period of limitation was extended by six years, in which case it would go beyond the date on which the Bank was wound up. The short question for decision is if the acknowledgement by the company of its liability by payment in October, 1949 enured not- only for a claim of payment but also for enforcement of security. The short question for decision is if the acknowledgement by the company of its liability by payment in October, 1949 enured not- only for a claim of payment but also for enforcement of security. ( 19 ) IT was not disputed that there would be no question of limitation if the claim was within time when winding up proceedings were initiated. It was also not disputed that having regard to the date on which the cause of action arose and the confirmation of liability in the subsequent balance-sheets of the company, the claim was out of time at the time of the institution of proceedings for winding up of the bank unless and to the extent the limitation was extended by payment of part of the amount by the creditor to the bank. It was also not disputed that part payment was unade to the bank by cheque on October 29, 1949 and the cheque was encashed on October 31, 1949. If the limitation for the claim be 3 years, then, obviously, the claim became barred by time by October, 1952, the liquidation proceedings having been initiated in 1954. If, however, the limitation for the claim be 6 years, it was not barred by time by 1954. That, therefore, is the crucial question that arises. It was also not disputed that a suit for the enforcement of security would be governed by Article 120 of the Limitation Act of 1908, corresponding to article 113 of the present Act, which provides the limitation of 6 years and by virtue of the payment, the claim would ordinarily be within time in 1954. It is, however, urged that the payment and] or acknowledgement implicit in it would enure in relation to the liability of the creditor to the Bank but not in relation to the security. Now, this is true that there is nothing in the payment or the manner in which it is made which may indicate an express acknowledgement erf the relationship between the parties, as pledger or pledgee and there was; no express acknowledgemet with regard to the relationship between the parties as such ledgers or pledgees or hypothecator or hypothecatee. There are no decisions either way if where there is a payment, it would extend the limitation for a suit simpliciter for recovery of money or for a suit for enforcement of security. There are no decisions either way if where there is a payment, it would extend the limitation for a suit simpliciter for recovery of money or for a suit for enforcement of security. It is, however, difficult to say on principle that such a payment would enure for the liability as a debtor but not for the purpose of enforcement of the security. Explanation (a) to Section 18 of the Limitation Act provides that an acknowledgement may be sufficient "though it omits to specify the exact nature of the property or right". There is authority for the proposition that it would be, enough if the right claimed in the suit is a legal consequence of the matter which has been admitted (3) and that the acknowledgement need not directly refer to the liability sought to be enforced in the suit. (4) It is also unnecessary that there should be identity between the liability admitted and. the precise relief sought in the suit. The acknowledgement is of liability which is admittedly a secured liability. The acknowledgement extends the limitation for the enforcement of the liability and the enforcement of the security je one of the modes for me enforcement of the liability. A faintsuggestion was made on behalf of the company, on the basis of a decision of the Bombay High Court (5) that a mere suit for payment by the disposal of the pledged property would. be a suit for recovery of money for which there would be a limitation of only 3 years. This decision is based on an earlier decision of that Court. (6) It is however, not possible to presume that the Bank would have filed a suit for recovery rather than a suit to enforce a pledge. There is considerable authority for the proposition, that a suit to enforce a pledge would be covered by the residuary Article 120, corresponding to Article 113 of the present Act. ( 20 ) IT was not urged that the applications were barred by time by virtue of Article 137 of the new Act, which has been held to be applicable to the applications under special statutes. ( 20 ) IT was not urged that the applications were barred by time by virtue of Article 137 of the new Act, which has been held to be applicable to the applications under special statutes. Such a contention would not have been open because Section 45-0 (1) of the Banking Regulations Act provides that the limitation would not run in such cases, notwithstanding the provisions of the Limitation Act, 1908 or any other law for the time being in force to the contrary. The present limitation Act would be within the mischief of sub-section (1 ). of Section 45-0 and there would be no limitation for these applications in spite of Article 137. For all these reasons, it is not possible to hold that claim or the present applications were barred by time. ISSUE NO. 2 ( 21 ) THIS issue raises the question if this Court has no jurisdiction to entertain the applications. The plea of want of jurisdiction was raised on the basis of the provisions of Section 45-D (10) of the Banking Regulation Act. Section 45d (10) would, however, have no application unless the matter involves the proprietory right in immovable property. Neither the Company nor its creditor claims any proprietory right in immovable property in any event, I have already held that no part of any immovable property forms subject matter of the pledge, hypothecation, etc. True there is a reference in the Agreement with regard to registration but that would not by itself be determinative of the true legal position. Section 45-D (10) is, therefore, clearly inapplicable and there is, therefore, no want of jurisdiction in this Court to deal with these applications. ISSUE NO. 5 ( 22 ) THAT leaves for consideration the question as to the relief. It was not disputed that once the question of limitation and jurisdictiom were out of way, the company would be liable to pay to the Bank the amount claimed by it. It was also not disputed that in view of the charge created on the uncalled capital the Bank would be entitled to have recourse to the same and the Official Liquidator of the Company would be bound to call the uncalled capital of the company and make over the proceeds to the bank towards the diminution of its liability. It was also not disputed that in view of the charge created on the uncalled capital the Bank would be entitled to have recourse to the same and the Official Liquidator of the Company would be bound to call the uncalled capital of the company and make over the proceeds to the bank towards the diminution of its liability. It was also not disputed that the Bank would be entitled to have recourse to the shares, which were charged. The only question is as to the relief to be granted against the creditor of the company, who had the custody and control of at least two cinema houses which were on lease with the company, including their fittings, fixtures, machinery, etc. and who for years carried on the business of exhibition of cinematographic films pursuant to the deed of mortgage entered into between the company and the creditor. The creditor never rendered any account to the company of its dealings with these assets and the proceeds of the business. The attempt by the District Judge for accounts. proved abortive. That the creditor held some of the assets of the company is admitted in the proceedings before the District Judge fa which section was sought for a compromise. In the absence, however, of the details of the pictures, fittings, fixtures, furniture, equipment, etc. in the deed of pledge, it is difficult to establish the identity of the assets at present held by the creditor. The various cinemas were held by the company on leases for different periods and these periods having since expired, the cinemas naturally reverted to the landlords. In the absence of a proper account of the dealings of the creditor with the various assets of the company, it is not possible to pin-point if the. creditor is liable to the company for any amount or for restoration of its assets beyond the assets admitted by the creditor to be in its possession. ( 23 ) IF the mortgage and/or pledge created by the company in favour of the creditor was in respect of the assets which had earlier been pledged or hypothecated with the bank, there would be no difficulty in holding that such mortgage and I or pledge would be subject to the prior rights of the bank In the absence of schedules to the deed of pledge, the identity of the assets is not established. It is, therefore, not possible to hold that the mortgage and/or pledge in favour of the creditor is subject to the prior rights of the Bank as pledgee or hypothecatee, particularly, where physical possession of none of these assets was at any stage taken by the Bank and the bank was satisfied merely by a provision in the deed that the company would beholding the assets as its trustee. There was no floating charge on future asstets with the result the relief must be confined to such of the assets as formed subject matter of the pledge etc. and can be identified. ( 24 ) IT is, however, not possible to relieve the creditor altogether unless it is established on a proper rendition of account that the debt secured by the mortgage deed had not been fully discharged tod there are atill outstandings infavour of the creditor which would exceed the value of the assets at present held by the creditor as also with regard to the true valuation of those assets ( 25 ) HAVING regard to all the circumstances, I would make the following directions: - (a) The Company is indebted to the Bank to the extent of Rs. 1,16,775. 67 and is liable to pay interest on the amount at 6 per cent p. a. from the date of the applications till the date of payment; (b) The Company is directed to pay the aforesaid amount with interest to the Bank; (c) The Bank would be entitled to recover the aforesaid amount from any asset of the Company, whether in the hands of the Company or its creditor which could be identified as the asset which formed subject-matter of the deed of pledge. The Bank would also be entitled to "the realisation of its outstanding from the proceeds of call on the contributories of the Company for the uncased capital and the official Liquidator of the Company would take all such steps as are necessary for the purpose. The Company would also be liable to recover its outstanding from the shares of Vanguard Insurance Company, in respect of which a charge was created in favour of the B. ank by a former director of the Company. The Company would also be liable to recover its outstanding from the shares of Vanguard Insurance Company, in respect of which a charge was created in favour of the B. ank by a former director of the Company. (d) The Company would also be entitled to the realisation of the outstandings by payment of such surplus as may be found, on a proper rendition of accounts, to be in the hands of the creditor. (e) The creditor would render a true and proper account of all its dealings with the assets of the Company under the deed of mortgage to the District Judge within six weeks and to pay the surplus, if any, to the Bank within two weeks of the rendition of such account. If the creditor fails to render the account, the District Judge would take all such steps as may be necessary to obtain a complete account of the dealings by the creditor with the assets, including an account of the outstandings of the creditor, the realisations made by the creditor from time to time and the true valuation of the assets at present held by the creditor, in the proceedings pending before the District Judge. The slay of proceedings before the District Judge is vacated and on the rendition of accounts and payment to the bank, if any, the District Judge would dispose of the proceedings for compromise in accordance with law: ( 26 ) THERE would, however, be no costs.