{"id":9920,"date":"1979-11-07T00:00:00","date_gmt":"1979-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-travancore-vs-goodland-plantations-p-ltd-on-7-november-1979"},"modified":"2016-09-30T10:41:32","modified_gmt":"2016-09-30T05:11:32","slug":"state-bank-of-travancore-vs-goodland-plantations-p-ltd-on-7-november-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-travancore-vs-goodland-plantations-p-ltd-on-7-november-1979","title":{"rendered":"State Bank Of Travancore vs Goodland Plantations (P) Ltd on 7 November, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Bank Of Travancore vs Goodland Plantations (P) Ltd on 7 November, 1979<\/div>\n
Equivalent citations: 1980 AIR 650, \t\t 1980 SCR (1)1157<\/div>\n
Author: A Koshal<\/div>\n
Bench: Koshal, A.D.<\/div>\n
           PETITIONER:\nSTATE BANK OF TRAVANCORE\n\n\tVs.\n\nRESPONDENT:\nGOODLAND PLANTATIONS (P) LTD.\n\nDATE OF JUDGMENT07\/11\/1979\n\nBENCH:\nKOSHAL, A.D.\nBENCH:\nKOSHAL, A.D.\nUNTWALIA, N.L.\nSHINGAL, P.N.\n\nCITATION:\n 1980 AIR  650\t\t  1980 SCR  (1)1157\n 1980 SCC  (1) 389\n\n\nACT:\n     Banking Regulation Act, 1949 Section 45(10)-Scope of.\n\n\n\nHEADNOTE:\n     The respondent  Company, a subscriber, had to pay money\nin monthly  instalments to  a Chitty run by the Orient Bank.\nThe last  instalment was  paid on  December  10,  1960.\t The\nrespondent was\tthe successful\tbidder. The prize amount was\nto be paid to the respondent on January 10, 1961. But before\nthat date  the\tCentral\t Government  imposed  a\t Moratorium,\noriginally for\tthe period  ending with\t the March  18, 1961\nwhich later on was extended upto June 16, 1961 on the Orient\nBank with the result that the Orient Bank had to suspend all\nits business  activity. This  resulted in the conduct of the\nChitty\tbeing\tdiscontinued,  so   that  the  Chitty  stood\nterminated and\tthe Orient  Bank  in  its  capacity  as\t the\nForeman of  the Chitty\tincurred the  obligation to pay back\nall the contributions made by non-prized subscribers.\n     The Central  Government sanctioned\t a scheme  under the\nBanking Regulation  Act for  the amalgamation  of the Orient\nBank with  the appellant  (Travancore Bank).  Realising that\nthe Travancore\tBank would  not\t be  able  to  continue\t the\nChitties for  which the\t Orient Bank  had acted\t as  Foreman\nbecause those  Chitties had  terminated owing to the failure\nof the\tOrient Bank to continue to conduct them by reason of\nthe Moratorium,\t the Central  Government passed\t an order on\nDecember 4,  1961 under\t section 45(10)\t of the Banking Act.\nThis order  was further\t amended substituting the words \"the\n31st March  1962\" for  the words  \"31st December  1961\", the\neffect of  which was  to obliterate  the termination  of the\nChitties as  resulting from the suspension thereof by reason\nof the\tmoratorium during  the period from December 18, 1960\nto 31st\t March, 1962,  and to  enable the  appellant-Bank to\ncontinue those\tChitties as  if there had been no suspension\nat any\tpoint of time, so that they could be continued as if\nthe relevant provisions of the Chitties Act and the relevant\nvariolas had throughout been complied with.\n     The respondent filed a suit claiming refund of the four\ninstalments paid  by it\t along with  interest. There  was no\nreference to  the  impugned  order  presumably\tbecause\t the\nrespondent had\tno knowledge  thereof. The suit was resisted\non the\tstrength of  the impugned order dated 15-1-1962, but\nthe vires of that order was challenged by the respondent and\nit was urged that the impugned order did not fall within the\nambit of  sub-section (10)  of section 45 of the Banking Act\nand  that   in\tany   case  that   sub-section\titself\t was\nconstitutionally invalid.  The suit  was transferred  by the\nHigh Court  to its own file, from the Court of Munsif as the\nconstitutional validity of section 45(10) of the Banking Act\nwas questioned. The suit was dismissed.\n     The respondent  instituted an appeal which was accepted\nby the\tDivision Bench.\t Disagreeing with the trial judge as\nto the object of the scheme of\n1158\namalgamation the  Division Bench  held that sub-section (10)\ndid not\t suffer from  excessive\t delegation  of\t legislative\npower.\n     It was  urged on behalf of the respondent in this Court\nthat one  of the  objects of  the scheme was to continue the\nChitties to  a successful  conclusion as  held by  the trial\nJudge and  that the  finding to the contrary recorded in the\nimpugned judgment was erroneous.\n     Allowing the appeal,\n^\n     HELD: The\tpervasive provisions  embraced in  the later\npart of\t paragraph 2  of the  scheme embraced  within  their\nambit a\t complete transfer of all rights and liabilities, of\nwhatsoever nature,  of the Orient Bank to the appellant-Bank\nand no special provision was therefore needed to be included\nin the\tscheme in regard to Chitties, if they were not to be\ncontinued to  a successful conclusion. As it is, the portion\nof paragraph  2 provides  for Chitties\ton a special footing\nwhich could  not  have\tbeen  the  case\t if  the  right\t and\nliabilities of\tthe Orient  Bank in  regard to Chitties were\nsought to  be transferred to the appellant Bank on the basis\nof the\ttermination of the Chitties which had already become\noperative because  of the Moratorium and as a consequence of\nsuspension of  the Chitty  business by\tthe Orient Bank. Nor\nwas it\tnecessary to provide in clause (1) of paragraph 2 of\nthe scheme  that  \"the\ttransferee  Bank  shall\t become\t the\nforman....and shall  continue to  exercise all powers and to\ndo all\tsuch acts and things as would have been exercised or\ndone by\t the transferor Bank....\" if the Chitties were to be\ndealt with  as\thaving\tcome  to  termination.\tThe  special\nprovision for  the Chitty  business cannot  be\tregarded  as\nredundant and it was obviously made with a purpose which, in\nthe circumstances of the case, could be nothing more or less\nthan to\t provide for  the continuation\tof the\tChitties  in\nsupersession  of  their\t termination.  No  other  reasonable\nexplanation of\tthat special provision appears possible. And\nif that\t be so, the entire reasoning adopted in the judgment\nof the\tDivision Bench\tfor arriving  at the conclusion that\nthe impugned  order was beyond the scope of sub-section (10)\nof section  45 of the Banking Act would become unacceptable;\nfor, in\t that case,  the difficulty which the impugned order\nsought to  overcome would  become  very\t real  so  that\t the\nCentral\t Government  would  be\tfully  competent  under\t the\nprovisions of  that sub-section\t to pass  an order  removing\nthat difficulty\t and the  order actually passed could not be\nconsidered to  be inconsistent\twith the  provisions of\t the\nscheme to  any extent  or in  any manner. The impugned order\ntherefore did  not fall\t outside  the  scope  of  the  power\nconferred on  the Central  Government under sub-section (10)\nof section 45 of the Banking Act. [1168 E-H, 1169 A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2531 of
\n1969.\n<\/p>\n
     From the  Judgment and  Order dated  20-1-1969  of\t the
\nKerala High Court in A.S. No. 39\/65.\n<\/p>\n
     P. Govindan Nair and K.J. John for the Appellant.
\n     M.R.K. Pillai for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KOSHAL, J.-For  a proper  appreciation of\tthe  dispute
\ngiving rise  to this  appeal by\t Special Leave\tagainst\t the
\njudgment dated 20th of
\n1159<\/span>
\nJanuary, 1969,\tof a  Division Bench  of the  High Court  of
\nKerala, a  reference to various provisions of the Travancore
\nChitties Act  (herein-after called the ‘Chitties Act’) being
\nAct XXVI  of 1120  (which year corresponds to years 1944 and
\n1945 of\t the Christian\tera) is\t necessary.  Clause  (2)  of
\nsection 3 of the Chitties Act defines a ‘chitty’ thus:\n<\/p>\n
\t  “A ‘chitty’  means a\ttransaction by\twhich one or
\n     more persons  hereinafter called the foreman or foremen
\n     enter into\t an agreement with a number of persons, that
\n     every one\tof the contracting parties shall subscribe a
\n     certain  amount  of  money\t or  quantity  of  grain  by
\n     periodical instalments  for a  certain definite  period
\n     and that  each in\this turn, as determined by lot or by
\n     auction or\t in such other manner as may be provided for
\n     in the variola, shall be entitled to the prize amount.”\n<\/p><\/blockquote>\n
“Chitty amount”\t is defined  in clause\t(3) of\tsection 3 to
\nmean the  sum total  of the contributions payable by all the
\nsubscribers for\t any instalment\t without any  deduction\t for
\ndiscount. In  clause (4)  the term  ‘discount’ is  stated to
\nmean the  amount of money or quantity of grain which a prize
\nwinner has,  under the\tterms of  the variola, to forego for
\npayment\t of  veethapalisa,  foreman’s  commission  or  other
\nexpenses. A  ‘foreman’ as  per clause (6) is the person who,
\nunder the  variola, is\tresponsible for\t the conduct  of the
\nchitty. ‘Variola’ is defined in clause (14) to be a document
\ncontaining the articles of agreement between the foreman and
\nthe subscribers\t in relation  to  the  chitty  while,  under
\nclause (15)  ‘veethapalisa’ is\tthe share of a subscriber in
\nthe  discount  available  under\t the  variola  for  rateable
\ndistribution among the subscribers at each instalment of the
\nchitty. ‘Prize\tamount’ says  clause (9),  means the  chitty
\namount reduced by the discount.\n<\/p>\n
     Section 9\tenumerates 13  particulars which  a  variola
\nmust contain and they are:\n<\/p>\n
\t  (1)  the  full   name\t and   residence  of   every
\n\t       subscriber;\n<\/p><\/blockquote>\n
\t  (2)  the number of tickets or the fraction thereof
\n\t       held by each subscriber;\n<\/p><\/blockquote>\n
\t  (3)  the number  of  instalments  and\t the  amount
\n\t       payable for each ticket at every instalment;
\n\t  (4)  the date\t on which the chitty is to begin and
\n\t       the date on which it is to terminate;\n<\/p><\/blockquote>\n
\t  (5)  the mode\t of ascertaining the prize winner at
\n\t       the successive instalments;\n<\/p><\/blockquote>\n
\t  (6)  the amount  of discount\twhich a prize winner
\n\t       at any instalment has to forego;\n<\/p><\/blockquote>\n
1160<\/span><\/p>\n
\t  (7)  the mode and proportion in which the discount
\n\t       is  distributable  by  way  of  veethapalisa,
\n\t       foreman’s commission  and other allowance, if
\n\t       any;\n<\/p><\/blockquote>\n
\t  (8)  the time\t and place at which the chitty is to
\n\t       be conducted;\n<\/p><\/blockquote>\n
\t  (9)  the instalment at which the foreman is to get
\n\t       the prize;\n<\/p><\/blockquote>\n
\t  (10) the approved  banks in  which  chitty  moneys
\n\t       shall be\t invested by  the foreman  under the
\n\t       provisions of the Act;\n<\/p><\/blockquote>\n
\t  (11) the consequence\twhich a non-prized or prized
\n\t       subscriber, or the foreman, will be liable to
\n\t       in case of any violation of the variola;
\n\t  (12) the nature  and particulars  of the  security
\n\t       offered by the foreman under section 17; and
\n\t  (13) any other  particulars that  may from time to
\n\t       time be prescribed by the Government.\n<\/p><\/blockquote>\n
Section 14  deals with\tthe time and place where the drawing
\nof prizes  in a\t chitty shall be conducted. Section 17 to 24
\nrelate to  the rights and liabilities of a foreman while the
\nnext  three   sections\tfollowing   provide  for  non-prized
\nsubscribers. Sections  29 to 32 embrace provisions regarding
\nprized\tsubscribers.  Sections\t38,  39\t and  41  relate  to
\ntermination of\tchitties and  may be  reproduced  here\twith
\nadvantage:\n<\/p>\n
\t  “38. (1) When a foreman dies or becomes of unsound
\n     mind his  legal representative  or his  guardian as the
\n     case may  be, shall, in the absence of any provision in
\n     the variola  to the  contrary, take  the place  of\t the
\n     foreman and have the right to continue the chitty or to
\n     make suitable  arrangements for  the further conduct of
\n     the chitty.\n<\/p><\/blockquote>\n
\t  (2) When  a foreman  is adjudicated  an  insolvent
\n     under the\tlaw relating  to insolvent  debtors for\t the
\n     time being\t in force or withdraws from the chitty under
\n     section 24\t or fails  to  conduct\tthe  chitty  at\t any
\n     instalment or any other date before the next succeeding
\n     instalment as  may have  been agreed  upon by a special
\n     resolution in  that behalf,  any one  or  more  of\t the
\n     nonprized\t subscribers   authorized   by\t a   special
\n     resolution may,  in the absence of any provision in the
\n     variolas for the future conduct of the chitty, take the
\n     place of the foreman and have the right to continue the
\n     chitty or to make suitable arrangements for the further
\n     conduct of the chitty.”\n<\/p><\/blockquote>\n
1161<\/span><\/p>\n
     “39. A chitty shall be deemed to have terminated only-
\n\t  (1) When  the period\tfixed in  the variola or the
\n     period as\taltered by  a subsequent  special resolution
\n     for the duration of the chitty has expired, or
\n\t  (2) when  the legal  representative of  a deceased
\n     foreman or the guardian of a foreman of unsound mind or
\n     the subscriber or subscribers selected therefor fail to
\n     conduct the  chitty or  make suitable  arrangements for
\n     the further  conduct of  the chitty  as provided for in
\n     section 38;\n<\/p><\/blockquote>\n
\t  Provided however  that if  there are\tmore foremen
\n     than one  and one\tor more\t such foremen are living and
\n     are not  disqualified to  act  under  section  38,\t the
\n     chitty shall  not be  deemed to  have terminated  under
\n     this clause  if  there  is\t provision  in\tthe  variola
\n     enabling the  remaining foreman  or foremen  to conduct
\n     the chitty\t or if the non-prized subscribers agree by a
\n     special resolution\t to the conduct of the chitty by the
\n     remaining foreman or foremen.”\n<\/p><\/blockquote>\n
\t  “41. Except  in the  case of clause (1) of section
\n     39, every non-prized subscriber shall, unless otherwise
\n     provided  for   in\t the  variola  and  subject  to\t the
\n     provisions of  section 27,\t be entitled to get back his
\n     contributions at  the termination of the chitty without
\n     any deduction  for veethapalisa,  if any,\treceived  by
\n     him.”\n<\/p><\/blockquote>\n
     2. The  facts are undisputed and may be briefly stated.\n<\/p><\/blockquote>\n
The plaintiff,\tviz., the  Goodland  Plantations  (P)  Ltd.,
\n(hereinafter  referred\t to  as\t  the  ‘Company’)  became  a
\nsubscriber to  a monthly  chitty run  by the Kottayam Orient
\nBank Limited  (‘the Orient  Bank’ for short) as foreman. The
\nCompany was to pay, like all other subscribers, a sum of Rs.
\n20,000\/- in  50 monthly\t instalments of\t Rs. 400\/- each. The
\nconduct of  the chitty\twas governed by variola exhibit P-1,
\napart from  the various\t provisions of the Chitties Act. The
\nchitty started\ton the\t10th of\t September, 1960,  when\t the
\nCompany paid  the first\t instalment due from it. Three other
\ninstalments were  paid by  the Company on 10-10-1960, 10-11-
\n1960 and  10-12-1960  to  the  foreman.\t On  the  date\tlast
\nmentioned, an  auction was  held for  the prize\t amount\t for
\nwhich the  Company was declared to be the successful bidder,
\nit having elected to accept a sum of Rs. 11,075\/- in lieu of
\nthe full  amount of Rs. 20,000\/-. The prize amount was to be
\npaid to\t the Company  a month  later, i.e.,  on the  10th of
\nJanuary, 1961,\t(when the  fifth instalment  was  to  become
\npayable) subject  to the Company furnishing security for the
\ncontinued
\n1162<\/span>
\nperformance of\tits part  of the variola in future. However,
\nbefore that  stage was\treached, the  Central Government, on
\nthe 17th  of December,\t1960, imposed  a moratorium  on\t the
\nOrient Bank  under section  45 (2) of the Banking Regulation
\nAct, 1949,  (hereinafter referred  to as  ‘the Banking Act’)
\nwith the consequence that the Orient Bank had to suspend all
\nbusiness\/activity. The\tmoratorium was\tenforced  originally
\nfor the\t period ending\twith the  18th of March, 1961, which
\nwas later on extended upto the 16th of June, 1961, (exhibits
\nD-1, D-2  and D-4).  The suspension  of business resulted in
\nthe conduct  of the  chitty being discontinued so that under
\nsub-section (2)\t of section 39 of the Chitties Act read with
\nsection 41  thereof as\talso clause (14) of the variola, the
\nchitty stood  terminated and the Orient Bank in its capacity
\nas the\tforeman of the chitty incurred the obligation to pay
\nback all the contributions made by non-prized subscribers.\n<\/p>\n
     On the  16th  of  May,  1961,  the\t Central  Government
\nsanctioned under  sub-section  (7)  of\tsection\t 45  of\t the
\nBanking Act  a Scheme  prepared by the Reserve Bank of India
\nunder sub-sections  (4) to  (6)\t of  that  section  for\t the
\namalgamation of\t the Orient  Bank with\tthe  State  Bank  of
\nTravancore (hereinafter\t called the  ‘Travancore Bank’). The
\nScheme\tprovided   inter  alia\t that  all  the\t assets\t and
\nliabilities of\tthe Orient  Bank would\tstand transferred to
\nthe Travancore Bank with effect from the 17th of June, 1961.
\nIn relation to chitties the Scheme laid down:\n<\/p>\n
\t  “If the  transferor bank  was\t acting\t immediately
\n     before the\t prescribed date  as a foreman in respect of
\n     any  kuri\tor  chitty  as\tdefined\t in  the  Travancore
\n     Chitties Act  (XXVI  of  1120)  or\t the  Cochin  Kuries
\n     Regulation\t (VII\tof  1107)  the\trights,\t duties\t and
\n     obligations in  relation to the kuri or chitty shall be
\n     regulated in  accordance with the following provisions,
\n     namely,\n<\/p><\/blockquote>\n
\t  (i) the  transferee bank  shall become the foreman
\n     of the  kuri or  chitty and  shall continue to exercise
\n     all powers\t and to do all such acts and things as would
\n     have been\texercised or done by the transferor bank, in
\n     so far as they are not in consistent with this scheme;\n<\/p><\/blockquote>\n
\t  (ii) the funds, if any, of the kuri or chitty lent
\n     to or  deposited with the transferor bank, or otherwise
\n     due from  that bank  to the  kuri or  chitty  shall  be
\n     transferred to the transferee bank, and the liabilities
\n     corresponding to  such funds  shall also  be payable by
\n     the  transferee  bank  in\taccordance  with  the  other
\n     provisions of this scheme;\n<\/p><\/blockquote>\n
1163<\/span><\/p>\n
\t  (iii) if  on the  prescribed date  the  transferor
\n     bank in  its capacity  as the  foreman of\tany kuri  or
\n     chitty  has   deposited  any   security  for   the\t due
\n     performance of  its duties\t and obligations in relation
\n     to the  said kuri\tor chitty,  the said  security shall
\n     continue to  be available for the purposes for which it
\n     was intended, but shall if and to the extent that it is
\n     subsequently released be transferred to and vest in the
\n     transferee bank  provided that  the said security or as
\n     the case  may be,\tthe surplus, if any, after providing
\n     for the  discharge of  the\t duties\t or  obligations  in
\n     respect of\t the kuri  or chitty  shall  be\t valued\t and
\n     utilised for the purposes of this scheme.”<\/p><\/blockquote>\n
     Later on it was realised that the Travancore Bank would
\nnot be\table to\t continue the  chitties for which the Orient
\nBank had acted as foreman earlier because those chitties had
\nterminated owing  to the  failure  of  the  Orient  Bank  to
\ncontinue to  conduct them by reason of the moratorium and in
\norder to  cross this  hurdle the  Central Government  passed
\nanother order  dated the  4th of  December, 1961,  which was
\ndescribed as  the Kottayam Orient Bank Limited (Amalgamation
\nwith the State Bank of Travancore) (Removal of Difficulties)
\nOrder, 1961.  That order  (hereinafter called  the ‘impugned
\norder’) was  passed under  sub-section (10) of section 45 of
\nthe Banking Act and its relevant portion is extracted below:\n<\/p>\n
\t  “2.  Notwithstanding\tanything  contained  in\t the
\n     Travancore\t Chitties   Act\t  or   the   Cochin   Kuries
\n     Regulation, the  suspension of  any kuri  or chitty for
\n     the period\t from the  18th December,  1960, to the 31st
\n     December, 1961,  or for any part of that period and any
\n     consequent prolongation  of the  kuri or  chitty  shall
\n     have effect  as though  the articles  in the variola(s)
\n     were altered  or added  to for  that purpose by special
\n     resolution(s)  of\t the  subscribers  of  the  kuri  or
\n     chitties and as though the relevant provisions, if any,
\n     of the  Travancore Chitties  Act or  the Cochin  Kuries
\n     Regulation\t were  complied\t with,\tand  notwithstanding
\n     anything contained\t in the\t Travancore Chitties  Act or
\n     the  Cochin  Kuries  regulation,  the  failure  of\t the
\n     foreman to\t conduct the  kuri or chitty during the said
\n     period shall  not be deemed to have terminated the kuri
\n     or chitty.”\n<\/p><\/blockquote>\n
\t  “3.  Notwithstanding\tanything  contained  in\t the
\n     variola (s)  the period  fixed for\t the duration of the
\n     kuri or chitty shall be deemed to have been extended by
\n     the period referred to in 2 above.”\n<\/p><\/blockquote>\n
1164<\/span><\/p>\n
\t  “4.  Notwithstanding\tanything  contained  in\t the
\n     Travan-core  Chitties   Act  or   the   Cochin   Kuries
\n     Regulation, the  State Bank  shall continue the kuri or
\n     chitty as\tif the provisions, if any of the said Act or
\n     the said Regulation relating to continuance of the kuri
\n     or chitty have been complied with.”\n<\/p><\/blockquote>\n
\t  “5. All  the words and expressions used herein but
\n     not  defined   shall  have\t the  meanings\trespectively
\n     assigned to  them in the Travancore Chitties Act, or as
\n     the case may be, the Cochin Kuries Regulation.”<\/p><\/blockquote>\n
     By another\t order dated  the  15th\t of  January,  1962,
\n(exhibit P-4)  the impugned  order was\tamended so  that the
\nwords “the  31st March, 1962” were substituted for the words
\n“31st of December, 1961” occurring in paragraph 2 thereof.\n<\/p>\n
     The effect\t of the\t impugned order\t as amended by order
\nexhibit\t P-4  was  to  obliterate  the\ttermination  of\t the
\nchitties as  resulting from the suspension thereof by reason
\nof the\tmoratorium  during  the\t period\t from  the  18th  of
\nDecember, 1960,\t to the\t 31st of  March, 1962, and to enable
\nthe Travancore\tBank to\t continue those chitties as if there
\nhad been  no suspension thereof at any point of time so that
\nthey could be continued as if the relevant provisions of the
\nChitties Act  and the  relevant variolas had throughout been
\ncomplied with.\n<\/p>\n
     3. The litigation started with a suit instituted by the
\nCompany on the 6th of December, 1961, claiming refund of the
\nfour  instalments   paid  by  it  along\t with  interest.  No
\nreference was  made in\tthe plaint  to\tthe  impugned  order
\npresumably because  the Company\t had  no  knowledge  of\t the
\nexistence thereof  as it  had been  passed only\t a couple of
\ndays before the suit was filed. The claim of the Company was
\nbased on  the averment\tthat the  Orient Bank  had failed to
\nconduct the chitty to which the Company had subscribed, that
\nthe chitty  had come  to a  termination\t by  reason  of\t the
\ndefault made by the Orient Bank, that the Orient Bank had in
\nconsequence become liable for payment back to the Company of
\nthe instalments deposited by it and that the Travancore Bank
\n(the sole  defendant) had  inherited the  liability  of\t the
\nOrient Bank.\n<\/p>\n
     The suit  was resisted  on the strength of the impugned
\norder (as  amended by  order exhibit  P-4) but\tthe vires of
\nthat order were challenged by the Company on whose behalf it
\nwas urged  that the  impugned order  did not fall within the
\nambit of  sub-section (10)  of section 45 of the Banking Act
\nand  that   in\tany   case  that   sub-section\titself\t was
\nconstitutionally invalid  inasmuch as its enactment amounted
\nto an  abdication of  the  legislative\tpower  which,  under
\nArticle 245 of
\n1165<\/span>
\nthe Constitution  of India,  vested  in\t Parliament  and  in
\nParliament alone.\n<\/p>\n
     4. The  suit was  originally filed\t in the Court of the
\nMunsif at  Kottayam but was transferred by the High Court to
\nits own\t file in 1963 because the constitutional validity of
\nsub-section (10)  of section  45  of  the  Banking  Act\t was
\nquestioned.\n<\/p>\n
     5. The  suit was dismissed by Raman Nayar, J., who held
\nthat the  impugned order  fell squarely\t within the scope of
\nsub-section (10)  of section  45 of  the Banking  Act, which
\nsub-section also  did not  suffer, according  to the learned
\njudge, from  the infirmity  of\texcessive  delegation.\tSub-
\nsection (10) states:\n<\/p>\n
\t  “If any  difficulty arises in giving effect to the
\n     provisions of the scheme, the Central Government may by
\n     order do anything not inconsistent with such provisions
\n     which appears  to it  necessary or\t expedient  for\t the
\n     purpose of removing the difficulty.”<\/p><\/blockquote>\n
     Raman Nayar,  J., noted  that the three requirements of
\nthe sub-section were:\n<\/p>\n
\t  “(1) that  a difficulty  should  arise  in  giving
\n     effect to the provisions of the scheme;
\n\t  (2) that  the order  to be  made must\t be such  as
\n     appears to\t the Central  Government to  be necessary or
\n     expedient for  the purpose\t of removing the difficulty;
\n     and
\n\t  (3) that  the order  must not be inconsistent with
\n     any of the provisions of the scheme”:\n<\/p><\/blockquote>\n
and found that all three of them were amply satisfied in the
\npresent\t case.\t In  his  view\tthe  object  of\t the  Scheme
\npromulgated by\tthe Central  Government on  the 16th of May,
\n1961, under sub-section (7) of section 35 of the Banking Act
\nwas that  the Travancore  Bank should take over the business
\nof the\tchitties earlier  run by the Orient Bank and conduct
\nthe same to a “successful conclusion”. However, that object,
\naccording to the learned Judge, could not be achieved as the
\nScheme\tdid   not  provide   for  an   obliteration  of\t the
\ntermination of\tthe said  chitties which  had already  taken
\nplace under  sub-section (2)  of section  38 of the Chitties
\nAct read  with sub-section (2) of section 39 thereof and the
\nprovisions contained  in the variolas. The learned Judge was
\nclearly of  the opinion\t therefore  that  a  difficulty\t had
\narisen in  giving effect  to the  provisions of\t the  Scheme
\nwhich was  sought  to be remedied by the impugned order. The
\nargument that the Scheme
\n1166<\/span>
\ndid not\t envisage the  continuation of\tthe chitties  by the
\nTravancore Bank,  that all  that the Scheme provided for was
\nthat the  rights and  obligations  of  the  orient  Bank  in
\nrelation to the chitties stood transferred to the Travancore
\nBank and  that in  consequence, the latter became liable for
\nthe return  of the amounts deposited by the subscribers with
\nthe Orient  Bank, was  turned down by the learned Judge with
\nthe following observations:\n<\/p>\n
\t  “It is no use saying that the defendant Bank could
\n     have had no difficulty in accepting that the chitty had
\n     terminated and  paying off\t the  unprized\tsubscribers.
\n     For, that would not be to work the scheme which clearly
\n     contemplates that\tthe defendant  bank should  run\t the
\n     chitties to  a successful\tconclusion.  The  difficulty
\n     that stood\t in the way of this being done was certainly
\n     a difficulty  in giving effect to the provisions of the
\n     Scheme”.<\/p><\/blockquote>\n
     For repelling  the contention  put forward on behalf of
\nthe Company  about the\tconstitutional\tinvalidity  of\tsub-
\nsection (10)  of section  45 of the Banking Act, the learned
\nJudge relied  on In  re\t Art.  143  Constitution  of  India,
\netc.(1) and Rajnarain Singh v. Chairman, P.A. Committee<\/a> (2).\n<\/p>\n
     6. Against\t the dismissal\tof  its\t suit,\tthe  Company
\ninstituted the\tappeal which  was accepted  by the  Division
\nBench through  the judgment challenged before us. Isaac, J.,
\nspeaking for  himself and  Pillai, J.,\tdisagreed  with\t the
\nlearned trial  Judge as\t to the\t object\t of  the  Scheme  of
\namalgamation and  observed that\t in so\tfar as\tthe chitties
\nwere concerned, there was nothing in the Scheme to show that
\nsuch object  was to  run them to a successful conclusion. He
\nwas further  of the  opinion that there was no difficulty at
\nall in\tthe way\t of the\t Scheme, as  originally promulgated,
\nbeing given effect to In this connection he remarked:\n<\/p>\n
\t  “There is  no difficulty in paying the amount. The
\n     difficulty is  only for  not paying  it; and  what\t was
\n     achieved by  exhibits P-3\tand P-4\t was the creation of
\n     that difficulty.  What exhibit P-3 provides is that the
\n     period during  which the chitty was not conducted would
\n     be treated as a period of suspension of the chitty by a
\n     special resolution\t of the\t subscribers. The  result of
\n     that provision  was that  the right of the plaintiff to
\n     get from  the defendant  the amount  subscribed to\t the
\n     chitty was\t taken away and substituted with a liability
\n     to
\n1167<\/span>
\n     draw  the\tprize  amount  on  furnishing  security\t for
\n     payment of\t future instalments.  This  is\ta  provision
\n     which is  clearly inconsistent  with the  provisions of
\n     the Scheme.  Exhibits P-3\tand P-4 are, therefore in my
\n     view beyond  the scope  of the  power conferred  on the
\n     Central Government under sub-section (10) of section 45
\n     of the Banking Companies Act.”<\/p><\/blockquote>\n
     In regard to the question of constitutional validity of
\nsub-section (10), however, the Division Bench concurred with
\nthe learned  trial Judge  and held that sub-section (10) did
\nnot suffer from excessive delegation of legislative power.\n<\/p>\n
     Allowing the  appeal, the\tDivision Bench\tdecreed\t the
\nsuit with costs of the proceedings in both the courts.\n<\/p>\n
     7. The  question of the constitutional validity of sub-
\nsection (10)  of section  45 of the Banking Act has not been
\nraised before us and all that we have to determine therefore
\nis whether  the impugned  order falls  within or outside the
\nscope of that sub-section.\n<\/p>\n
     8. Shri Govindan Nair, learned counsel for the Company,
\nhas vehemently\tcontended that\tone of\tthe objects  of\t the
\nScheme was  to continue the chitties (which had earlier been
\nconducted by  the Orient  Bank but had come to a termination
\nby reason of the moratorium) to a “successful conclusion” as
\nheld by\t the learned trial Judge and that the finding to the
\ncontrary recorded  in the impugned judgment is erroneous and
\nafter hearing  him and\tlearned counsel\t for the  Travancore
\nBank at\t length we  have no hesitation in agreeing with Shri
\nNair’s contention.  It is  to be  noted that  the  provision
\nregarding chitties appears in the latter part of paragraph 2
\nof the\tScheme, the earlier part of which may be quoted here
\nwith advantage:\n<\/p>\n
\t  “(2) As from the date which the Central Government
\n     may specify  for this  purpose under sub-section (7) of
\n     section 45\t of the said Act (hereinafter referred to as
\n     the  prescribed   date)  all  rights,  powers,  claims,
\n     demands, interests\t authorities, privileges,  benefits,
\n     assets and\t properties of\tthe transferor bank, movable
\n     and  immovable,   including  premises  subject  to\t all
\n     incidents of  tenure and to the rents and other sums of
\n     money and\tcovenants reserved  by or  contained in\t the
\n     leases or\tagreements under  which they  are held,\t all
\n     office furniture,\tloose equipment, plant apparatus and
\n     appliances, books,\t papers, stocks of stationery, other
\n     stocks and\t stores, all investment in stocks shares and
\n     securities all bills receivable in hand and in transit,
\n     all cash
\n1168<\/span>
\n     in hand  and on  current or  deposit account (including
\n     money at call or short notice) with banks, bullion, all
\n     books debts,  mortgage debts  and other  debts with the
\n     benefit of\t the securities,  or any guarantee therefor,
\n     all other,\t if any, property rights and assets of every
\n     description including  all rights of action and benefit
\n     of all  guarantees in  connection with  the business of
\n     the  transferor   bank  shall,  subject  to  the  other
\n     provisions of  this Scheme,  stand transferred  to, and
\n     become the\t properties and\t assets of,  the  transferee
\n     bank;  and\t  as  from   the  prescribed  date  all\t the
\n     liabilities, duties  and obligations  of the transferor
\n     bank shall\t be and shall become the liabilities, duties
\n     and obligations  of the  transferee bank  to the extent
\n     and in the manner provided hereinafter.
\n\t  Without  prejudice   to  the\t generality  of\t the
\n     foregoing\tprovisions   all  contracts,  deeds,  bonds,
\n     agreements,  power\t  of  attorney,\t  grants  of   legal
\n     representation and other instruments of whatever nature
\n     subsisting or  having  effect  immediately\t before\t the
\n     prescribed date shall be effective to the extent and in
\n     the manner hereinafter provided against or in favour of
\n     the transferee bank and may be acted upon as if instead
\n     of the  transferor bank  the transferee bank had been a
\n     party thereto  or as  if they had been issued in favour
\n     of the transferee bank.”<\/p><\/blockquote>\n
     These pervasive  provisions embraced within their ambit
\na  complete  transfer  of  all\trights\tand  liabilities  of
\nwhatever nature,  of the  Orient Bank to the Travancore Bank
\nand no special provision was therefore needed to be included
\nin the\tScheme in  regard to chitties if they were not to be
\ncontinued to  a\t “successful  conclusion”.  As\tit  is,\t the
\nportion of  paragraph 2\t extracted by us earlier did provide
\nfor chitties  on a special footing which could not have been
\nthe case if the rights and liabilities of the Orient Bank in
\nregard to  chitties were  sought to  be transferred  to\t the
\nTravancore Bank\t on the\t basis of  the\ttermination  of\t the
\nchitties which\thad already  become operative because of the
\nmoratorium and\tas a consequence of suspension of the chitty
\nbusiness by the Orient Bank. Nor was it necessary to provide
\nin clause  (1) occurring  in paragraph\t2 of the Scheme that
\n“the transferee\t bank shall  become the\t foreman.. and shall
\ncontinue to  exercise all powers and to do all such acts and
\nthings as would have been exercise or done by the transferor
\nbank..” if the chitties were to be dealt with as having come
\nto a  termination. The\tspecial\t provision  for\t the  chitty
\nbusiness in  the Scheme\t cannot be regarded as redundant and
\nit was obviously made with a purpose
\n1169<\/span>
\n     which, in\tthe circumstances  of  the  case,  could  be
\nnothing more or less than to provide for the continuation of
\nthe chitties  in supersession of their termination. No other
\nreasonable explanation\tof that special provision appears to
\nus possible. And if that be so, the entire reasoning adopted
\nin the impugned judgment for arriving at the conclusion that
\nthe impugned  order was beyond the scope of sub-section (10)
\nof section  45 of the Banking Act would become unacceptable;
\nfor, in\t that case,  the difficulty which the impugned order
\nsought to  overcome would  become  very\t real  so  that\t the
\nCentral\t Government  would  be\tfully  competent  under\t the
\nprovisions of  that sub-section\t to pass  an order  removing
\nthat difficulty\t and the  order actually passed could not be
\nconsidered to  be inconsistent\twith the  provisions of\t the
\nScheme to any extent or in any manner.\n<\/p>\n
     9. In  the result\twe hold\t that the impugned order did
\nnot fall  outside the  scope of\t the power  conferred on the
\nCentral Government  under sub-section  (10) of section 45 of
\nthe Banking  Act and  reverse the  finding to  the  contrary
\nrecorded in  the impugned  judgment.  Allowing\tthe  appeal,
\ntherefore, we  set aside  the impugned\tjudgment and dismiss
\nthe suit  but, in  the circumstances  of the case, leave the
\nparties to bear their own costs throughout.\n<\/p>\n
N.K.A.\t\t\t\t\t     Appeal allowed.\n1170<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Bank Of Travancore vs Goodland Plantations (P) Ltd on 7 November, 1979 Equivalent citations: 1980 AIR 650, 1980 SCR (1)1157 Author: A Koshal Bench: Koshal, A.D. PETITIONER: STATE BANK OF TRAVANCORE Vs. RESPONDENT: GOODLAND PLANTATIONS (P) LTD. DATE OF JUDGMENT07\/11\/1979 BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. UNTWALIA, N.L. SHINGAL, P.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-9920","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Bank Of Travancore vs Goodland Plantations (P) Ltd on 7 November, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-bank-of-travancore-vs-goodland-plantations-p-ltd-on-7-november-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Bank Of Travancore vs Goodland Plantations (P) Ltd on 7 November, 1979 - 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