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Matter No. 9 of 1952, decided on 18th May 1964.

, Ss. 61, 62 & 63‑Transfer of pending proceedings to High Court‑Power can be exercised only in respect of suits or proceedings con templated under subsection (1) of S. 62‑Money suit by Banking Company, in liquidation, instituted in Munsif's Court after promul gation of Ordinance ‑Cannot be transferred to High Court under S. 62‑0fcial Liquidator may bring claim before High Court for adjudication under S. 61 read with S. 63‑Remedy specifically provided in S. 63 for trial of such cases exclusively by High Court‑Inherent jurisdiction, under Cl. 13, Letters Patent (Cal.), not invocable‑Letters Patent (Cal.), Cl. 13.

, S. 62(3) "and (4)‑Permission under subsection (4) to continue case in Court where it is proceeding‑Applicable only in cases contemplated under subsection (3).

Ruhul Islam for the Official Liquidator.

Nizamuddin Haider for Respondent,

This is an application under section 62 of the Banking Companies Ordinance, 1962, by the State Bank of Pakistan, Official Liquidator of the Bank of Commerce Ltd., (In Liquidation) for transfer of Money Suit No. 103 of 1962, pending in the Second Munsif's Court at Bagarhat and also Miscellaneous Case No. 99 of 1963, pending in the Court of Subordinate Judge, Khulna. The petitioner has given the details of the claims in respect of the aforesaid money suit and the miscellaneous case in Annexure A' of the petition. The money suit was instituted by the Official Liquidator against a debtor, Monoranjan Mridha by name, in December 1962.

Mr. Nizanjuddin Haider, learned Advocate for the defendant Monoranjan Mridha submits that the suit in question is not liable to be transferred to this Court under section 62 of the Banking Companies Ordinance, 1962, nor can it be tried by any Court other than the High Court. His contention is that the Ordinance came into force on 7‑6‑1962, and the suit was instituted on 31‑12‑62. The suit was not pending before the commencement of the Ordinance and as such the provisions relat ing to transfer do not apply to this case.

Mr.Rahul Islam, learned Advocate for the State Bank of Pakistan submits that this Court has inherent jurisdiction to transfer a case to this Court under clause 13 of the Letters Patent. He, however, concedes that the suit is not liable to be transferred under section 62 of the Ordinance.

The material part of section 61 of the Ordinance is in the following terms: ‑

"The High Court shall, save otherwise provided in section 62, have exclusive jurisdiction to entertain and decide any claim made by or against the Banking Company which is being wound up ..,

It is, therefore, clear that the High Court, to the exclusion of all other Courts, shall have jurisdiction to entertain and decide a claim made by a Banking Company which is being wound up. The Bank of Commerce Ltd., is being wound up, the money suit has been instituted by that Bank. Plain reading of the section is that it is only the High Court which can entertain the claim made in the said money suit but in view of the saving clause in section 61, which makes this exclusive jurisdiction subject to section 62, I am called upon to find out if the money suit is covered by the provisions of section 62. Subsection (1) of section 62 is in the following terms:

(1). Where a winding up order is made or has been made in respect of a banking company, no suit or other legal proceeding, whether civil or criminal, in respect of which the High Court has jurisdiction under this Ordinance and which is' pending in any other Court immediately before the com mencement of this Ordinance or the date of the order for the winding‑up of the Banking company, which ever is later, shall be proceeded with except in the manner hereinafter provided."

It is true that it is a suit made in respect of a Banking Company which is being wound up and over which the High Court has jurisdiction. But it does not fulfil the other require ment. The suit was instituted in December 1962, and a few months earlier, the Ordinance was promulgated in June 1962. It is f not a suit which was pending in a Court before the commencement of this Ordinance or before the order of winding‑up in November 1952. Therefore, the Money suit in question is not contemplated under subsection (1) of section 62. Subsection (2) itself, however, is subject to the exceptions enumerated in the subsections which follow it. Since it is clear that subsection (1) itself does not apply to the suit in question it is not very necessary to discuss the exceptions to the prohibition contained in subsection (1). I will, however, for the‑sake of completeness of the picture briefly refer to subsection (2) which is as follows:

"The official liquidator shall, within three months from the date of .the winding‑up order or the commencement of this Ordinance 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 words such pending proceedings' occurring in subsection (2) make it clear that the reference is to a proceeding contemplated under subsection (1) of section 62. When subsection (1) of section 62 does not apply to the suit, in question, it is logical that subsection (2) also will not apply. I will now refer to sub section (3) which reads as follows:

"On receipt of a report under subsection (2) the High Court may, if it so thinks fit, give the parties, concerned an opportunity to show cause why the proceedings should not be transferred to itself and after making an inquiry in such manner as may be provided by rules made under section 79, it shall make such order as it deems fit transferring to itself all or such of the pending proceedings as may be specified in the order and such proceedings shall thereafter be disposed of by the High Court."

Opening words of subsection (3) refer to subsection (2) and make it clear that subsection (3) will only deal with cases in respect of which a report, under subsection (2) can be made. Since it has been already seen that it cannot be made in respect of this money suit, as it was not pending at the time of the commencement of this Ordinance, subsection (3) also does not apply. It is now to be considered whether the wide import of subsection (4) of the Ordinance can be of any avail, sub section (4) is in the following terms:

"If any proceeding pending in a Court is not so transferred to the High Court under subsection (3) such proceeding shall be continued in the Court in which the proceeding was pending."

Subsection (4) specifically speaks of subsection (3) and provides that if a case is not so transferred under subsection (3) it shall continue in the Court where it was proceeding. So this permis sion of continuation in the same Court applies to a proceeding, contemplated under subsection (3) and the said money suit not being visualised under that subsection, no benefit of the permis sion of continuation s provided in subsection 4 can be derived. The concluding subsection (5) of section 62 relates to a proceeding pending in appeal before the Supreme Court or High Court and I need hardly add that subsection (5) has no application to the money suit in question.

I, therefore, find myself unable to make an order under section 62 transferring this case to the High Court as the power given under the said section can be exercised only in respect of the suit or proceeding contemplated under the said section.

It is, however, clear from the statement of the claim as set out in Annexure A' of the petition, that such a claim shall be entertained and decided by the High Court in its exclusive jurisdic tion in this behalf. It is open to the Official Liquidator to bring this claim before the High Court for its adjudication under section 61 read with the provisions of section 63 of the Ordinance which give powers to the High Court to settle list of debtor which can be filed within a period of 6 months from the date of winding‑up order or the commencement of this Ordinance or when leave is granted by the High Court even after the expiry of 6 months. Since the case is specifically provided for in the statute, it is not necessary to fall back on the inherent jurisdiction of this Court.

Miscellaneous Case No. 99 of 1963, Was also instituted after the commencement of this Ordinance. That being so, no order of transfer can be made in respect of that case as well for the reasons as stated above.

In the result, the prayers for transferring the aforesaid Money Suit No. 103 of 1962, as well as the Miscellaneous Case No. 99 of 1963, are rejected. The costs of this application will come out of the assets of the Company.

K. B. A. Application rejected.

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