KHONDKER FAIZUR RAHMAN Versus OFFICIAL LIQUIDATOR, SOUTHERN BANK LTD. (IN LIQUIDATION) AND OTHERS

1. This is an application under section 235 of the Companies Act read with section 67 of the Banking Companies Ordinance, 1962.

2. The petitioner Khondker Faizur Rahman had a current Deposit Account No. 1539 in the Southern Bank Ltd. till it suspended its business by the order of this Court dated 28‑4‑64. Later on the State Bank of Pakistan was appointed as the Official Liquidator by this Court by its order dated 10th November 1964. It is alleged by the petitioner that he deposited one cheque for a sum of Rs. 41,400.00 on 20‑4‑64 and another cheque for a sum of Rs. 29,280.00 on 21‑4‑64. The petitioner alleges that he enquired about the fate of these two cheques from the then Manager of Southern Bank Ltd. during the period of suspension of business of the Bank. He was told by the said Manager that the cheques had not yet been cleared by the State Bank of Pakistan. The petitioner further alleges that he had deposited several cash warrants with the Executive Engineer which cash warrants had been obtained by him from the Bank. In 1966 he received 50 % of the amount of the cash warrants which were released by the Executive Engineer except one cash warrant for a sum of Rs. 11,400 which was Cash Warrant No. 127 and was issued by the Bank on 17‑4‑1964. With regard to this cash warrant he was told that he could not be given credit for the sum and it could not be entertained by the Official Liquidator on the ground that the said cash warrant was not mentioned in the books of accounts of the Bank in Liquidation. During this period the petitioner made enquiries regarding the fate of his two aforesaid cheques totalling Rs. 70,680 but was told again and again that since a winding up proceeding had commenced the matter was under investigation by the Official Liquidator. It is alleged in para. 8 of the petition that on 12th December 1964, he received information from the Official Liquidator to the effect that the balance in the current Deposit Account No. 1539 shows an amount of Rs. 101.50 paisa only as on 28th April 1964. It is alleged that he took up the matter immediately with the Southern Bank Limited and was told by the then Manager of the Southern Bank Limited that the figure Rs. 101.50 paisa only shows the balance on 28th April 1964, but as the two cheques have been forwarded to the State Bank for clearance the amount covered by the said cheques namely Rs. 70,680 will not be shown in the balance‑sheet. A copy of the said letter is enclosed with the petition as Annexure B but it has got no reference to the two cheques. It is the case of the petitioner that he has never issued any advice to the Southern Bank to transfer the amount of the two cheques, nor did he issue any instruction to pay the amount to any other person. The petitioner further stated that he had further come to learn from the Official Liquidator that his name has not been included as one of the creditors in respect of the aforesaid sum of Rs. 82,080 being the amount covered by the two cheques and the cash warrant. On further enquiry the petitioner came to learn that the Southern Bank Ltd. in collusion with one Rabindranath Ghose (respondent No. 3) transferred Rs. 70,680.00 being the total amount of the aforesaid two cheques to the account of the said Rabindranath Ghose. It is alleged that the petitioner was not informed by the Southern Bank about the transfer and the petitioner had come to learn from an ex employee of the Southern Bank Ltd. but who was also functioning for and on behalf of the Official Liquidator that the money had been transferred from the petitioner's account to the account of the said Rabindranath Ghose. The petitioner claims that such transfer if true was illegal and unauthorised as there has been no transfer‑advice by the petitioner. The Official Liquidator also did not inform the petitioner about the fate of those two cheques.

3. It is alleged that on further query by the petitioner the Official Liquidator pleaded complete ignorance about those cheques. The petitioner then is alleged to have filed affidavit in proof of his claim against Southern Bank Ltd. to the officer‑in‑charge who, however, without recording any reason verbally informed the petitioner that the petitioner may seek redress of his grievance by way of an appropriate proceedings in the Court of law. On these facts petitioner alleges that the officers of the Southern Bank Ltd. had been guilty of breach of trust had misapplied the afore said amounts of Rs. 82,080 by retaining the said amount by committing fraud and as such had become liable and accountable for the aforesaid amount. Hence the present application was filed by the petitioner. The petitioner prays for issuing the following directions

(i) that the Southern Bank Limited (in Liquidation) owes to the petitioner the sum of Rs. 82,080.00 only on account of

4. Rs.

(a) Cheque No. 212997 ... 41,400

(b) Cheque No. 213608 ... 29,280

(c) Cash Warrant No. 4127 ... 11,400

5. ... 82,080

(ii) That the Official Liquidator be directed to include the petitioner as creditor of the Southern Bank Limited (in liquida tion) for the aforesaid amount in addition to his other claim.

6. In a supplementary affidavit the petitioner has given the name of the informant in paragraph 11 of his petition as one Amol Kumar Bhadra of Haji Mohsin Road, P. S. Kotwali, Khulna and the name of respondent No. 2 Dhirajlal Chatterjee who was the Manager of Southern Bank Ltd. at the relevant time.

7. The Official Liquidator entered appearance and filed a counter affidavit on 18th of April 1967. The counter affidavit has been sworn to by one Mr. Rab who claims to be Banking Officer of the State Bank of Pakistan and was an officer‑in‑charge of the Banking Company. It is stated by the Official Liquidator that the amount of the two cheques were credited to the petitioner's current account No. 1539 on 21‑4‑64. The entry for Rs. 41,400 bears a remark "By Clearing", and the entry for Rs. 29,280 bears a remark "By Transfer". The relative credit vouchers dated 21‑4‑1964 indicate that Rs. 41,400 representing the proceeds of cheque No. 217997 dated 20‑4‑64 after collection to clear it and the other sum of Rs. 29,280 represented the proceeds of the other cheque No. 2103607 dated 21‑4‑64 credited by debit to "Bill Discount Account" pending collection. A report from the repre sentative of the Official Liquidator at Khulna reveals that the cheque was also collected on 23‑4‑1964 and the proceeds thereof were adjusted against the aforesaid "Bill Discount Account". Thus the proceeds of both the cheques were credited to the petitioner's current Account. It is further stated by the Official Liquidator that the books of account and other papers, however, showed that on the same date a total sum of Rs. 70,680 was transferred to Current Account No. 1333 of R. N. Ghosh by debit to the petitioner's Account No. 1539 through Debit and Credit Vouchers passed under the signature of the then Manager of the Banking Company, Mr. D. L. Chatterjee. The official liquidator goes on to state that from the relevant vouchers it appears that the debit and credit entries were passed at the instance of said R. N. Ghosh who purports to have signed his name on the reverse of the two vouchers. There is no other record available with the Banking Company in this behalf. Thus it is claimed by the Official Liquidator that when the State Bank of Pakistan took over the affairs of the Banking Company on 28‑4‑64 as Special Officer, the said Current Account No. 1539 of the petitioner, Khandaker Faizur Rahman had a credit balance of Rs. 101.50 paisas. The amount being less than Rs. 250 it was paid to the creditor by a cheque dated 6‑1‑65 and the account was closed. The payment was made in accordance with the direction of the High Court dated 19‑12‑64 in terms of which 100 % payment was to be made to the creditors of the Banking Company whose account had credit balance up to Rs. 250. The Official Liquidator, therefore, claimed that it was not liable for the proceeds of the two cheques in question. Certified copies of the ledger entries in respect of Current Account Nos. 1539 and 1333 referred to above were annexed as Annexures "A" and ` B" to the counter affidavit.

8. With regard to the cash warrant for the amount of Rs. 11,400 it is stated that from the records it appears that a Cash Warrant No. 4127 dated 17‑4‑64 for the sum of Rs. 11,400 was purchased by the petitioner in favour of the Executive Engineer (C & B) Resource Division 11, Khulna but the money was not booked through the books of accounts of the Banking Company. The counterfoil of the cash warrant bears a remark of the then Manager to this effect : "Entry not passed to day". It is claimed that the cash warrant in question was not found outstanding in the books of the Banking Company when the State Bank of Pakistan took over its affairs as Special Officer appointed by this High Court and subsequently as Official Liquidator with effect from 10‑11‑64. It is stated in the counter‑affidavit that how the money was utilised or accounted for by the said Manager D. L. Chatterjee is not available on the records of the Banking Company. In the circumstances the Official Liquidator states that it is not liable for the amount of Rs. 11,400. The Official Liquidator further states that the petitioner Khondakar Faizur Rahman received the cheque of Rs. 101.50 paisa on 27‑2‑65. With regard to the affidavit of claim by the petitioner, the official liquidator states that on receiving the affidavit on 15‑3‑67 this deponent referred the matter to the representative of the Official Liquidator who was working as the Incharge of the Banking Company at Khulna for report and while the claims of the petitioner were being examined by this official liquidator the petitioner served a copy of this petition and summons on 12‑4‑67.

9. The respondent No. 3 Rabindra Nath Ghose entered appear ance on 9‑6‑67 and filed a counter‑affidavit. The case of this respondent is that on 17‑4‑64 this respondent No. 3 and the petitioner instructed the Manager Southern Bank Limited, Khulna to prepare a cash warrant for Rs. 11,400 only, and accordingly the cash warrant No. 4127 was prepared but the same was not delivered as no payment could be made for want of fund. Thereafter the respondent No. 3 and the petitioner approached the said Manager on 19‑5‑64 and made him understand that in the absence of the said cash warrant formal tender for carriage of cement and M. S. rod from Resource Godown, Daulatpur to C & B building Division, Rajshahi could not be submitted as a result of which no payment would be received by them before the Eid and their position would be precarious before their labourers. The respondent No. 3 and the petitioner also assured the Manager that the payment would be made by 30‑4‑64. Accordingly the Manager delivered the said cash warrant for Rs. 11,400 to the petitioner, who submitted the said cash warrant to the office of the Executive Engineer, Building Resources Division along with the formal tender the said formal tender was passed by the Executive Engineer on 20‑4‑64 and on the same date the first running bill was passed and cheque No. 212987 for Rs. 41,400 only was issued on 21‑4‑6 t, the second running bill was passed for the said job and cheque No. 213607 for Rs. 29,280 was issued. On 21‑4‑64 both the respondent No. 3 and the petitioner went to the said Southern Bank Limited for making payment of the said sum of Rs. 11,400 and learnt that the business of the Bank was suspended under order of the High Court and Manager of the said Bank was also found absent ; hence payment could not be made. It is claimed by the respondent No. 3 that all other cash warrants were purchased by him in the name of the petitioner by debiting money from Current Account No 1333. With regard to the two cheques the case of respondent No. 3 is that the respon dent No. 3 and the petitioner had a partnership business and for the convenience of works the alleged two cheques were transferred to the account of the respondent No. 3 under instruc tion from the petitioner and out of the said amount two fixed deposit receipts of Rs. 20,000 each were purchased in the name of Mr. Keya Rani Ghosh wife of the respondent No. 3 from the same Southern Bank Limited on the same date i.e. 21‑4‑64 within the knowledge of the petitioner and the rest was withdrawn on different dates for making payment at the work site as well as to pay the petitioner to meet his Eid expenses. It is further stated by respondent No. 3 that the petitioner had been enlisted as a first class Contractor under C & B Building Directorate but he had no money to secure and execute work and the petitioner had approached the respondent No. 3 and requested him to invest his money in contract business. Accordingly an oral partnership was formed between the petitioner and respondent No. 3 on 1‑12‑63 for securing and executing works under C & B Building and Resources Divisions, Khulna. It was agreed upon between the petitioner and respondent No. 3 that the business would be run in the name of the petitioner and the entire capital would be provided by respondent No. 3. Accordingly respondent No. 3 started advancing money and as per previous agreement the payments were received from the Government in the name of the petitioner and the profit was divided between the petitioner and the respondent No. 3 in equal shares after paying back the money advanced by respondent No. 3. It is further stated that the cheques were received from the C & B Office by the petitioner and sometimes the respondent No. 3 used to receive cheques from the C & B Office. For the convenience of the execution of works sometimes the petitioner transferred money from the account of respondent No. 3 to his account and sometimes the respondent No. 3 also transferred money from the account of the petitioner to his account. The case of respondent No. 3 further is that after the closing of the Southern Bank Limited the petitioner opened an account with the United Bank Limited, Khulna. Some cheques were encashed with the said Bank the major portion of which were transferred either by bearer cheque or by Account payee cheques to the account of respondent No. 3. On 2nd June 1964, another account was opened by the petitioner with the Commerce Bank Limited, Khulna being Account No. R‑17 and on the same date the petitioner applied for an overdraft of Rs. 13,000 against the two fixed deposit receipts of Rs. 20,000 each of Mrs. Keya Rani Ghosh wife of respondent No. 3 made in the Southern Bank Limited, Khulna on 21‑4‑64 and the said overdraft was granted to the petitioner and he drew the money. Thereafter on 4‑7‑64 the petitioner drew two cheques for Rs. 45,000 each one in favour of the petitioner and the other in favour of the respondent No. 3 and each of them purchased a fixed deposit of Rs. 45,000 from the Commerce Bank Limited. On 21‑7‑64 the petitioner and the respondent No. 3 required a sum of Rs. 1,10,00) for executing works and the sum was secured by overdraft against which the said two fixed deposits of Rs. 45,C03 each was kept in security. The profit of this transac tion was also shared by the respondent No. 3 and the petitioner. There were other transactions jointly carried out by the partners till 10‑3‑65 when the partnership was dissolved by a deed of agreement dated 10‑3‑65 by both the petitioner and respondent No. 3 in which they clearly admitted that they had already received money of their respective shares and it was also admitted that out of Rs. 55,000 on account of pending bills the respondent No. 3 will get Rs. 15,000 only but the said amount had not yet been paid by the petitioner. The respondent No. 3 alleges that pursuant to a demand by respondent No. 3 for the said sum of Rs. 15,000 the petitioner has made this fictitious claim involving the respondent No. 3.

10. An attempt was made to secure the presence of Dhirajlal Chaterjee, the ex‑Manager, Southern Bank Limited but it trans pires from the Peon's report that the said Dhirajlal Chaterjee had left for Hindustan two to four months before the date on which the summons were sought to be served on him.

11. The petitioner has examined himself only in support of his case. The Official Liquidator has examined one Mr. M.

1. Siddiky who took charge of the Bank at Khulna on, 24‑6‑64 as D. W.

1. He has also examined Md. Idris an officer f the State Bank of Pakistan who was incharge of Southern Bank Ltd. The cashier of the Southern Bank Ltd. Amal Kumar Bhadra has also been examined as D. W.

3. The respondent No. 3 Rabindranath Ghose has given evidence as D. W. 4.

12. The petitioner has reiterated the statement that he has made in the petition. He has proved Exh. 1 and the letter which he received in December 1964, and his case is that on receipt of the letter he asked the Officer‑in‑charge of the Bank why his balance was shown as only Rs. 101.50 paisa and he was told by the Officer‑in‑charge that as the State Bank had suspended the opera tion of the Bank so his cheques were not cleared and he would be informed later on. He further stated that on receipt of the cheque for Rs. 101.50 paisa he was told that the sum represented the balance due to him as on 28‑4‑64 and that his name would be entered in the creditors' list when the said two cheques were cashed. He has produced the said cheque for the sum of Rs. 101.50 paisas which has been marked as Exh.

2. He produced two cash warrants Exh. 3 dated 8‑2‑64 and Exh. 4 dated 17‑2‑64. Exh. 3 is for a sum of Rs. 2,200 only for which the Bank paid 50 % on 20‑2‑67, and the payment against Exh. 4 which is for a sum of Rs. 11,400 was refused. He states that he got Exh. 4 on 17‑4‑64 and he paid for it. He states that Amal Bhadra D. W. 3 told him that the money of the two cheques were transferred in the name of R. N. Ghose. After learning this he saw the liquidation officer at Dacca and also at Khulna. He alleges that this person told him that there was no final list prepared when it would be done he would be informed. He has stated that he did not authorise Southern Bank nor R. N. Ghose regarding the transfer of the amount of the two cheques. He admits that he transferred to R. N. Ghose's account by 2 or 3 letters to the Managers Southern Bank for the purpose. He further states that after writing a letter of authority to the Bank he went to the Bank within 15 to 20 days and the Manager told him on one occasion it was a heavy amount so he has signed the transfer voucher. He admits that he transferred a sum of Rs. 45,000 on 12‑2‑64 to R. N. Ghose by a cheque. He further admits that on 9‑3‑64 he transferred a sum of Rs. 45,541 to R. N. Ghose by a letter of authority and that he subsequently signed the voucher also. On 2‑4‑64 he admits that he bad transferred an amount of Rs. 6,000 to R. N. Ghose by a letter of authority. For the first time in Court he admits that he took R. N. Ghose as his partner. He said that they both carried out the work and they used to invest money and work together. On 10‑3‑65 he admits that the partnership was resolved. This dissolution is admitted by him to have been made by a deed of dissolution. He admits that there were other transactions with R. N. Ghose through the Commerce Bank and states that every transfer made by him was by means of cheque in the Commerce Bank.

13. In cross‑examination by Mr. Islam for the Official Liquidator the witness states that the joint work was in the name of the witness but Mr. Ghose and he worked jointly in different places. He admits that he purchased some cash warrants from Southern Bank Ltd. and states that he paid every time except on one occasion, which was done by Mr. R. N. Ghose. When confronted with the question that the Bank record shows that all the cash warrants that were purchased in his name were purchased from his account by debiting from his account, he states that instruction might have been there.

14. When further questioned that excepting the said sum of Rs. 11,400 all other cash warrants had been purchased by debiting from his accounts he answers that he does not remember exactly. So far as the tender of this cash warrants for Rs. 11,400 his case is that he submitted the same along with the cash warrants for Rs. 2,200 and the Bank Officers paid 50 % of the cash warrant for Rs. 2,200 but did not accept the cash warrant for Rs. 11,400 and returned the same to him. The Official Liquidator then suggested that he did not tender the cash warrant for Rs. 11,400 on the same date as that for Rs. 2,200. He denied the suggestion. So far as the two cheques were concerned he admitted that these cheques were issued by the Executive Engineer in connection with the partnership business but were in his name. He said that he came to learn for the first time from Amal Bhadra at the end of the year, 1966 when he went to enquire about the cash warrant of its. 11,400 that the amount of these cheques had been transferred to the account of Mr. R. N. Ghose. He reiterated that whenever transfers were made from his account all were made against letters and instructions. On one occasion he admitted that an amount was transferred by letter of authority and when he went to the Bank after 15 or 20 days the Bank authorities took another signature on the transfer voucher as it was a heavy amount. Various transfer vouchers were produced by the official Liquidator and put to the witness and he admitted these transfer vouchers. The Official Liquidator finally suggested that this was a false claim based on the fact that the transfer vouchers did not contain his signature. On cross‑examination by Mr. K. M. Sobhan for respondent No. 3 the witness reiterated that all transfers were made by letter of instructions and admits that he has not got a copy of any of these written instructions. He admits that for purchasing a cash warrant one has to fill up the forms but does not remember whether he applied for the cash warrant of Rs. 2,200 dated 8‑2‑64. He admits Exh. G a document by which the partnership was dissolved but only says that the date 1‑12‑63 as referred to in paragraph 1 was not mentioned in his copy and that it was a later insertion. He says that the signature in Exh. 1 is definitely his signature and admits the signature of Rabin Ghosh and of the others and states that all the signatures were known to him and all the signatures wer,2 given in his presence. He admits that excepting the date 1‑12‑63 occurring in paragraph 1 of Exh. G he did not dispute the contents of the deed, He admits that an account was opened iii Commerce Bank Limited on 2‑4‑64 and he took overdrafts of Rs. 1,10,000 by letter dated 21‑7‑54. As security for the said overdraft he admits that he deposited two fixed deposit certificates of Rs. 45,000 each. One in his own name and the other in the name of Rabin Ghosh. He also admitted that against another overdraft of Rs. 13,000 he had placed a fixed deposit certificate of Mrs. Keya Rani Ghosh for Rs. 20,000. Mrs. Keya Rani Ghosh is the wife of Mr. R. N. Ghosh. He admits that along with other clients Of Southern Bank Limited he authorised R. N. Ghosh to look after their interests with the Southern Bank after it went into liquidation. When asked that between January 1964, to 28th April 1964, he received in all four cheques against the work. He replies he does not remember. The value of the cheques namely, Rs. 60,000, 5,541, 41,400 and 29,280 is put to him but he says that he does not remember. He does not remember whether the two cheques were for the same work. He admits that he went with Rabin Ghosh to the Bank to deposit these two cheques and that Rabin Ghosh wrote one of the pay‑in‑slips and that Amal Bhadra of Southern Bank wrote the other pay‑in‑slip. He has proved the letter written by the said Bank on 12‑12‑64 as Exh.

1. He has produced the cheque for Rs. 101.50 paisa issued by the Official Liquidator as Exh.

2. He has produced cash warrant dated 8‑2‑64 for Rs. 2,200 as Exh. 3 and has proved the endorsement on it dated 20‑2‑67 showing payment of 5 % and has produced the Cash warrant for Rs. 11,400 as Exh. 4 showing no endorsement of the Bank. On this evidence he has prayed for a declaration that the Southern Bank Limited owes to the petitioner the sum of Rs. 82,080 and prayed for a direction on the Official Liquidator to include the petitioner as creditor of the Southern Bank Limited (in Liquidation) for the aforesaid amount in addition to any other sum which may be due to him.

15. The Official Liquidator has examined as D. W. 1 one Mr. M.

1. Siddiky. He has testified that he took charge of the Bank at Khulna on 24‑6‑64 and before him one Mr. Abbasi was in charge from the morning of 29th April 1964. This witness has categorically stated that the cash warrant of the value of Rs. 11,400 was not produced before him nor the petitioner made any enquiry about the proceeds of the two disputed cheques. In cross‑examination by Mr. Chowdhury the witness reiterated that he only met the petitioner at the time of his putting his claim in respect of Rs. 101 50 paisa and states that the cash warrant for Rs. 11,400 was never shown to him. He denies that he ever told the petitioner that the whole matter namely cash warrant for Rs. 11,400 and the proceeds of the two cheques were under investigation by the State Bank. He states that be looked at the transfer vouchers for the two cheques after the matter was referred to him by the Official Liquidator after submission of the present petition by the petitioner. It was suggested that it was unusual that the amount was transferred to one account from another without the cheque being cleared first. He replied that it is up to the Bank and when they are sure they usually do it. He says that normally the Banking practice is that while an amount is transferred it can be done by a transfer voucher. Then he goes on to say that if it is an account payee cheque the transfer voucher must be signed by the transferee on the transfer voucher or letter of authority. When the suggestion is given that a transfer voucher is never signed by the transferee he replies it is a practice of the Bank when the debtors and creditors are asked to sign on the back of the vouchers or letter of authority from the person whose account is debited. In answer to the specific question that the signature of the transferor is a must. He replies, yes. He cannot say that the transfer on 21st April 1964, is a regular one. With regard to the cash warrant he explains that the remark by the Manager "entry not passed" means that it was not passed that is why it was held up. As regards the effect of the cash warrant with that remark he cannot say. It was only up to the Manager. He states that Dhiraj Lal Chattarjee was in service up to 31st December 1964. He did not notice whether any irregula rity was there or not. He says that he has not come across any letter of authority by Faizur Rahman.

16. In answer to the cross‑examination by Mr. K. M. Sobhan he states that a cheque on the State Bank of Pakistan is cleared on the same day or latest by the next day. If the cheque is not cleared by the next day written advice is sent to the party concerned who had deposited the cheque and that was the invariable practice.

17. The next witness examined by the Official Liquidator is one Mr. Rob who was Officer‑in‑charge of the Southern Bank Limited. He has stated that it was on the 15th of March 1967, when Khondkar Faizur Rahman made a claim with regard to the sum of Rs. 82,000. Previous to this there was no claim by Mr. Faizur Rahman so far as these amounts are concerned. He proves that the sum of Rs. 101.50 paisa was paid through the cheque on 27‑2‑1965 to Mr. Faizur Rahman in final payment of the balance in his current Account No. 1539. He has proved the affidavit of Khondker Faizur Rahman dated 7‑3‑1967 regarding the amount of the said two cheques and the cash warrant. He says that after receipt of the claim he called for a report and that the report stated that the two cheques were cashed on the due date and on the same date through necessary vouchers the amount was transferred to another account appertaining to Mr. R. N. Ghosh. With regard to the cash warrant he stated that although the counterfoil was in possession of the Bank there was no relevant entry of the amount received by the Bank if any, either by cash or by cheque or by any other payment. He has further testified that before any reply could be given to the claim of the petitioner the petitioner had filed this application in this Court.

18. In cross‑examination by Mr. Chowdhury he has stated that he met the ex‑Manager at Khulna and enquired of him of the transaction and he was reported to have stated that the payments were made by him according to the practice prevailing with these two account holders, He could not say whether the transactions were regular or irregular and it depended on the Manager and the practice of the Bank. He goes on to say that if the Banker is satisfied with the dealing with the customers on whose account and from whose account he is transferring, he can at times do by obtaining the signatures on vouchers, general order or whatever they may arrange with the customers. Then he proves the signature of cash warrant on which 50% has been paid by the official Liquidator. He reiterated that the amount of the two cheques were encashed duly and transferred to the account of R.N Ghose, In cross‑examination by Mr Subhan he says that when he had said in answer to the question of Mr. Chowdhury that no transfer was made by verbal order that was from his R~ knowledge, that is knowledge obtained by him in his employment v. in the State Bank. He admits that he has not worked in any o. commercial Bank whose practice differ to general practise in Li order to accommodate their customers. On re‑examination by Mr. R. Islam he clarified the figure of Rs. 12,331.50 paisa as claimed in the second bill of the claim preferred by Mr. K. F. Rahman with the Official Liquidator.

19. Amal Kumar Bhadra D. W. 3 has been with Bank since 1956 and was working as Cashier since 1963. He has proved the cash analysis book maintained by the accounts Department under different heads and has stated that there was no entry in that book on 17th April 1964, regarding the cash warrant of Rs. 11,400. He has also proved the rough cash book maintained by the Bank and that there was no entry on 17th April 1964, regarding the said amount of Rs. 11,400. He has also proved the cash warrant ledger of the Bank and has stated that there was no entry in the said ledger regarding the said cash warrant of Rs. 11,400. He has proved the two deposit slips for the two cheques in issue and has said that the said slips did not bear the signature of the depositors. He has said that Rs. 41,400 was deposited by clearance. On 21‑4‑64 the sum amounting to Rs. 29,780 was ‑deposited by bill discount and has proved the relevant document by which the said amount was credited. He has proved the transfer voucher showing the transfer from the current account of K. F. Rahman a sum of Rs. 70,680. On it the signature of R. N. Ghose appears. He has said that the amounts seems to be transferred between the account of R. N. Ghoss and K. F. Rahman in that way. If one is present at the time when the amount is to be deposited his signature is taken then the other partner would come later and would affirm it. He has corroborated the evidence of the other Banking Officer that cheques of the State Bank of Pakistan are cashed on the same day or at the latest by the next day and that parties are informed within 5/6 hours that the cheques were returned. He has categorically stated that no enquiry was made by Mr. Rahman regarding the clearing of the cheques. Nor did he make any enquiry about the cheques when he received the cheques from Official Liquidator of Rs. 101.50 paisa. He proves the various other cash warrants which were produced by the Official Liquidator and shows that all the cash warrants were purchased by cheques issued by Mr. R. N. Ghose. He proves the application for payment of Rs. 101.50 paisa by Mr. Rahman as well as the receipt signed by him in full and final satisfaction of his outstanding dues. He has proved the cash warrant book of the Bank and the counterfoil regarding the cash warrant of Rs. 11,400 and proved the entry on the counterfoil to the effect "entry not passed‑to‑day" in the hand of the Manager. He says that Mr. Rahman did not file any claim with regard to the cash warrant of Rs. 11,400. In cross -examination his attention was drawn to the ledger but he could not say if there was no entry in the said ledger regarding the said cash warrant of Rs. 11,400. With regard to the transfer of the two cheques he has replied that as per advice of R. N. Ghose means the advice for Mr. K. F. Rahman in both the cases. He has stated that there was nothing in writing and if there was anything it might be with the Manager. When asked how he could say that in case of these transfers it was done with the consent of both the partners he has replied that he had previously heard that such transfers were made between them that if one was not present the other partner will confirm the vouchers later. He has said that if the transfer was made by the voucher then they used to obtain the signature of both the parties.

20. The next witness is Rabindra Nath Ghose and he is respon dent No. 3. In a lengthy evidence he has given in details the manner how he came to start the partnership business with Mr. Khondker Faizur Rahman. It is clear from his evidence that the partnership was on a 50/50 basis. The work was to be secured in the name of Mr. Khondker Faizur Rahman and Mr. R. N. Ghose was to provide the entire money for the work. The first cash warrant for the earnest money amounting to Rs. 4,000 was secured by debiting Ghose's account of 4th December 1963. He gives in detail the payments received by him of the business till the closing of the Southern Bank and then he relates the works carried out by the partners after the closing of the Southern Bank. Relating to the cash warrant for Rs. 11,400 his evidence is that he and Mr. Rahman telephoned from the residence of Mr. Rahman to the Manager, Southern Bank to prepare a cash warrant for Rs. 11,400 on 17‑4‑64. On 17th April 64, he could not arrange the money and then both of them called on the Manager and told him that they would be able to arrange the money on the 18th April 64. On 18th also they could not pay the money but they obtained the cash warrant on 19th April, '64 without paying anything. He clarifies the position further by stating that though 19th April, '64 was a Sunday be and Mr. Rahman had learnt on 18th that the Manager would be going to Calcutta on the next day with some papers of the Bank and for that purpose the Manager instructed the peon to remain present in the Bank on the 19th at about 9 a.m. So both of them went to the Bank on Sunday and explained to the Manager that if they could not get the cash warrant they could not submit the formal tender for carriage of cement and they would not get any payment before Eid and their position would be very precarious. Then both of them gave assurance to the Manager that if by 30th April, '64 they could not jointly pay the amount then the amount would be debited from the fixed deposit of his wife on 30th of April; '64 and on that assurance cash warrant was handed over to them. He further stated that on 29th. April, '64 he and Mr. Rahman wanted to make the payment but on going to the Bank they found a notice that by an Order of the High Court the Bank had suspended its business and Mr: Abbasi who was in charge told him that he could neither receive nor pay any money.

21. With regard to the two cheques he has stated that the entire amount of Rs. 70,6S0 was transferred to his account from Mr. Rahman's account on 21st April, '64. Although the cheque for Rs. 29,280 was not cashed on that date, the Bank purchased the cheque. He says that this amount was received from the resource division by cheque. With the amount his overdraft account was adjusted and he purchased two fixed deposits of Rs. 20,000 each in the name of his wife Keyal Rani Ghose. He says that on the same date he withdrew Rs. 12,000 cash for labour payment and for payment to the boat men and on 22nd April, '64 he withdrew the sum of Rs. 4,000 and gave to Mr. Rahman for his expenditure for Eid.

22. He says further that the partnership busine3s was dissolved on 10th of March 1965, when all the receipts and disbursements including the said sum of Rs. 70,680 was taken into account. In cross‑examination it is sought to be elicited from this witness that this witness was working on behalf of Ali Basher & Company. The witness admits that the petitioner's uncle Ali Ahmed ‑was his friend. Although he did not work with Ali Ahmed he used to supervise his business from time to time. Ali Ahmed was a partner of Ali Basher & Company. As regards the submitting of formal tender for which the cash warrant for Rs. 11,400 was required he admits that it was submitted on Sunday the 19th and states that the Executive Engineer kept his Office open to facilitate payments before Eid. As regards the arrangements for transfer from Faizur Rahman's account to his account and vice versa. He has said

23. The arrangement was if an amount was transferred both bad to sign but not simultaneously one after another. Sometimes he had taken money by his signing and sometimes later I signed it and sometimes 1 used to take money from his account and he signed transfer voucher later.

24. But the transfer always between done on the instruction of the respective constituent.

25. We had issued standing instructions to the Bank. When either of us wanted to transfer any money the Bank, was to do it and other party was to confirm it afterwards. Standing order was written or verbal. Verbal.

26. He proves the transfer of Rs. 15,600 from his account by a transfer voucher to Mr. Faizur Rahman's account and states that he signed the voucher on subsequent date when he went to the Bank. He states further that Mr. Rahman took the money by signing first and subsequently he confirmed it. Another transfer voucher for Rs. 45,541 showing transfer of the amount from Mr. Rahman's account to witness's account was put to him and he signed first and Mr. Rahman signed subsequently. With regard to the transfer voucher for Rs. 7,680 he states that on it appears his signature but subsequently the signature of the petitioner was not taken as the Bank was closed. Suggestion was given to the witness that he was aware that an application was going to be moved in this High Court for moratorium and a grace period for 30 days for suspending the activities of the Bank, to which he replied that had he been aware of the fact he would withdraw his account from the Bank. It was next suggested to this witness that as he knew that the Bank is going to suspend its activity he in collusion with the Bank's Manager fraudulently transferred the amount to his account, to which the witness replied that the transfer was made for the purpose of the business.

27. The next witness is one Mr. M. A. Bari. He is a first class Contractor enlisted in the C & B Division and had occasion to see Mr. Ghose and Mr. Rahman during their work in the C & B Division. He has testified that the work though in the name of Mr. Rahman was being executed by Mr. Ghose. He has also testified that generally the C & B Office remains open on Sunday towards the close of the financial year and Eid and Bakra‑Eid. He remembers to have been called to the C & B Office on Sunday the 19th April 1964. He said that he is also a constituent of the Southern Bank Limited and he came to know about the closure on 29th April 1964. He testifies that he was a signatory to the resolution of the depositors authorising Mr. R. N. Ghose to act on their behalf. It was decided to raise some money to move the High Court. Almost all the contractors raised the subscription but Mr. K. F. Rahman refused as he had no money in the Bank and over this there was an altercation. In cross‑examination he has more or less confirmed his statement made in examination‑in -chief.

28. All the relevant documents have been brought on record either as annexures to the affidavit or as Exhibits through the witnesses.

29. The points for determination which arise in this case are as follows

(1) Is the application under section 235 of the Companies Act, 1913 read with section 67 of the Banking Companies Ordinance, 1962 maintainable?

(2) Was the cash warrant for Rs. 11,400 obtained by deposit of its consideration?

(3) Was the transfer of the sum of Rs. 70,680 from the petitioners account to R. N. Ghose's account valid?

(4) Whether the transfer if valid created any liability on respondent No. 3 and whether respondent No. 3 is liable to reimburse the said amount?

30. As regards the first point I shall take it up after consideration of the case on merits.

31. With regard to the second point, whether the cash warrant for Rs. 11,400 was obtained by deposit of its consideration, the petitioner has given very evasive evidence. He does not anywhere state that he deposited the consideration in cash. His evidence in chief with regard to this particular cash warrant is as follows :

32. "Please tell the Court about this cash warrant.

33. This cash warrant also released on the same date. I took both the cash warrant to Southern Bank together.

34. You bought this.

35. Yes I bought on 17‑4‑1964.

36. Have you paid for it?

37. Yes.

38. Then when you took them what happened to Southern Bank.

39. Southern Bank accepted those on seeing their khatas at Khulna they say that there was no entry in their register. Then they asked me to retain it with me, and they also asked me to wait when they will enquire about this from Dacca office, marked Exh. 4," and in cross‑examination by Mr. Islam on behalf of the state Bank

40. "You said that the cash warrants for the value of Rs. 11,4 0 were purchased by making cash payment.

41. Yes.

42. T put it to you, you never paid for the cash warrant either by cash or cheque.

43. I have paid cash for this cash warrant.

44. I also put it to you that somehow or other you prevailed upon the Bank staffs to deliver your cash warrant without making payment.

45. No."

46. Exhibit 3 is a cash warrant for a sum of Rs. 2,200. This it appears was paid for by debiting the amount from the petitioners account but it is inexplicable how cash warrant for such a huge sum as Exh. 4 was paid for in cash. In this respect the evidence of Opposite‑Party No. 3 R. N. Ghosh seems to be more acceptable. He has given the circumstances very explicitly. He has stated that the partnership was in urgent need of money to pay tile workers before the Eid but they could not obtain the payment for the work done by them unless the formal contract was drawn up. For this they were required to deposit a security of the said sum in the shape of cash warrant. Tile circumstances relating to the issue of the said cash warrant is deposed by him as follows

47. "On the 18th when I went to the Bank Mr. K. F. Rahman was with me. The Manager of the Bank gave instruction to his peon that he was to remain present in the Lank on the next day at about 9 a.m. He was due to leave for Culcutta on the Eid holidays on the 23rd and he was to take some papers to the head office from the Bank. From that I came to know that he would be present on Sunday in the Bank.

48. Did you go to the Bank on Sunday.

49. Yes. Myself and Mr. Rahman went.

50. How did you get the cash warrant.

51. That was after 9 at about 9 or 9‑15 we reached the Bank. We made him to understand that if we do not get the call deposit we cannot submit the formal tender for carriage of cement from the resource godown to Rajshahi Building Division. If we do pot deposit this formal tender no payment was expected before Eid. And our position would be ridiculous if we do get the payment and if we do not get the payment we cannot pay board hire and truck hire before the Eid. I made him understand in 2 methods. One was that' we jointly make the payment by 30th of April and the other method is if no payment is received before that day the payment would be made against the fixed deposit of my wife on that day.

52. On that assurance this cash warrant was handed over to you.

53. Yes."

54. He has stood the test of cross‑examination very well and I accept this evidence of D. W.

4. The Bank's officers and records also confirm this evidence. D. W. 3 states

55. "On 17th April 1964, did you attend office.

56. Yes, I did.

57. Was any cash warrant of the value of Rs. 11,400 purchased by Khandaker Faizur Rahman.

58. On that day no cash warrant of such amount was issued from the bank.

59. Had there been any cash warrant sold on that date of the value of Rs. 11,400.

60. If it would have been issued there would have been mentioned in the bank's book (with objection). Rough cash book was maintained by me.

61. This is cash analysis of the Southern Bank Ltd.

62. This is the cash analysis book used to be maintained by the Accounts department.

63. What are items that are maintained in cash analysis book. Total sums of different heads used to be maintained in this book. Is there any entry in that book on 17th April 1964, regarding this amount of Rs. 11,400.

64. No.

65. Was any draft cash book maintained by you.

66. Yes.

67. Is that rough cash book.

68. Yes. This book was maintained by me.

69. Is there any entry on' 17th April 1964, regarding this amount of Rs. 11,400.

70. No. Sir, there is no entry in respect of Rs. 11,400. (Exh. K and Exh. L)."

71. Exhibit EE is the corresponding counterfoil of the cash warrant kept by the Bank. There is a clear note in the said counterfoil to the effect `entry not passed today', Exh. EE(2). The petitioner and his partner took out a number of cash warrant for their business. The Bank has honoured every one of them. I fail to understand why the Bank should not have honoured this cash warrant if the amount had been deposited with them. The clear evidence of Amal Bhadra D. W. 3 and of Opposite‑Party No. 3. D. W. 4 supported by the bank's records clearly indicate that the amount was not deposited but the cash warrant was issued by the then Manager of the bank on the assurance that the amount would be paid by 30th April 1961, as a favour to its trusted clients. I therefore determine this point against the petitioner.

72. Next I take up point No. 3 namely whether the transfer of the sum of Rs. 70,680 from the petitioner's account to R. N. Ghosh's account was valid. In this connection it has been strenuously argued by Mr. Choudhury that the transfer was made hurriedly without any instruction from the petitioner. He has argued that the Bank officials were acting in collusion with R. N. Ghosh, opposite‑party No. 3. The Bank officials already were aware that the Bank would go into liquidation shortly. R. N. Ghosh also was aware of that and this hurried transfer was made to enable R. N. Ghosh to make up his deficit account and to purchase in the name of his wife a fixed deposit of Rs. 40,000.00 so that even if the Bank went into liquidation, R. N. Ghosh would profit at least to some extent. He has further argued that the Bank has not been able to show any legal authority for the transfer and in the absence of such legal authority the transfer was void. The evidence of the petitioner with regard to these two cheques is that after the deposit of the same the Bank went into liquidation and he went to see the Manager Dhiraj Lal Chaterjee Opposite‑Party No. 2 and he had told him that the cheques had been forwarded to the State Bank of Pakistan for clearance and that as the Bank had gone into liquidation the matter will be dealt with by the State Bank. After that he went away from Khulna for construction work in Faridpur but he us‑‑ud to male inquiry from the Southern Bank about his two cheques anal the former Manager of the Bank used to tell hire that the list was not vet prepared. In December 1964, he received a letter from a the State Bank of Pakistan stating that Rs. 101.50 paisa was balance in his account and he was asked to receive the same in settlement to his claim. He alleges that he went on inquiry why the balance was only Rs. 101.50 paisa and he was told as the State had suspended the operation of the Bank's account as his cheques were not cleared and that he would be informed later. According to this evidence certain factors remain unexplained. From the records it is clear that the cheques were presented on 20th and 21st April. There is clear evidence on behalf of the Bank that such cheques are cleared within 24 hours if presented early and it cannot be presumed that the petitioner was not aware of this fact. Therefore when the Bank's operation was suspended on 28‑4‑64 there was a clear interval of seven days by which time the cheques would be cleared and credited to the account of the petitioner. From the records it appears that the Bank cleared the cheque presented on 20th April 1964, and purchased the cheque presented on 21‑4‑64. That is to say that on 21‑4‑64 the Bank credited the petitioner's amount for the whole sum of the two cheques although the second cheque was not yet cleared. On 21‑4‑64 it appears that the amount was transferred to the account of R. N. Ghosh by transfer voucher Exh. U. Each. U shows that Rs. 70,680 was credited to the account of R. N. Ghosh by debit ing the account of K. F. Rahman, as per advice. The voucher was signed only by R. N. Ghosh. From this Exhibit and the fact that the second cheque had not yet been encashed, Mr. Choudhury would like the Court to conclude that this was an unauthorised transfer made on behalf of R. N. Ghosh by the Bank authorities. I will take up the defence of the Bank in this respect later. But for the moment I cannot understand how the petitioner could remain quiet at least after December 1964, without agitating the question how the cheques remained not cleared even on the date of the suspension of the Bank's work on 28‑4‑64. This appears to me to be an unbelievable statement and can be explained only by the fact that the transfer was made with the knowledge of the petitioner, if not direct advice. That the petitioner accepted the transfer as a valid transfer will appear from Exh. G, an agreement breaking up the partnership, executed by both the petitioner and R. N. Ghosh on 10‑3‑65 wherein it is clearly stated that the first party that is petitioner and the second party that is R. N. Ghosh mutually settled up their accounts up to 10th March 1965. So as between the petitioner and the Opposite‑Party R. N. Ghosh this amount was taken into consideration on 10th of March 1965. Therefore the transfer in favour of R. N. Ghosh was accepted by the petitioner. The petitioner has clearly admitted as correct the relevant contents of Exh. G.

73. Now let me see what the Bank has to say in this matter. The Bank's case is that the transfers were made from the accounts of K. F. Rahman to that of R. N. Ghosh and vice versa on the advice of either of them and often only one would sign the transfer voucher at the time of transfer and the other would sign at sometime later. As evidence of this practice the Bank had but in several transfer vouchers. Exh. A is a transfer voucher dated 20‑2‑64 in which the amount of Rs. 1,500 is debited from the account of R. N. Ghosh and credited to that of K. F. Rahman. It is signed only by R. N. Ghosh. Exh. C is transfer voucher dated 9‑3‑64 in which a sum of Rs. 45,541 is being debited from the account of the petitioner K. F. Rahman and credited to that of R. N. Ghosh. The voucher shows the signature of R. N. Ghosh dated 9‑3‑64. The petitioner has signed the same on 28‑3‑64. This Exhibit clearly shows that the bank accepted the instruction of either party and transferred the amount as directed when the other party would confirm the transfer later. Exh. E is a transfer voucher dated 2‑3‑64 in which a sum of Rs. 6,000 is being transferred to the account of R. N. Ghosh from the account of the petitioner. But it shows only the signature of R. N. Ghosh and the petitioner never signed the said voucher but nevertheless he has not complained regarding the said transfer. Thus it is clear that the Bank accepted the instruction of either partner with regard to the transfer from one account to the other. It is the evidence of the banking officer that in certain cases when a large amount was concerned, confirmation of the transfer was obtained from the partner whose account had been debited for the sake of the safty of the Bank. From all these facts and circumstances it appears that the transfer in question was a valid transfer as per arrange ment between the two partners and the bank.

74. The question now arises whether the transfer was legal so far as the bank is concerned. In this connection Mr. Chowdhury had argued that Bank had no authority to transfer the amount without written instruction from the depositor that is the petitioner and has relied on the evidence of D. W. 1 Mr. M.

1. Siddique to the following effect

75. "Transfer voucher is never signed by the transferee.

76. It is the practice of the Bank that by the depositor, that is debtors and creditors asked to sign on the back of the vouchers on letter of authority from the person whose account is debited.

77. But the signature of the transferor is a must.

78. Yes."

79. The transfer in question as represented by Exh. U not showing the signature of the petitioner was according to Mr. Chowdhury illegal. In this connection the evidence of D. W. 2 Mr. M. A. Rab another banking officer was to this effect

80. "The Manager could accidentally be caught hold by me at

81. Khulna when I enquired of the transactions, he said that the payments were made by him according to the practice prevail ing with these two account holders.

82. These two transactions were irregular.

83. This I cannot say, because I was not in the Bank at that time. Whether it was regular or irregular as what was the dealing with these two accounts and the Manager who passed for payment.

84. Transfers are effected by way of transfer voucher or letter of authority.

85. Well, this depends upon the practice of the Bank. If the

86. Banker is satisfied with the dealing with the customers on whose account and from whose account he is transferring, he can at times do by obtaining the signatures on vouchers, general order or whatever they may arrange with the customers.

87. By signature or by general order in writing. Or any other mode arranged with the bankers."

88. These two banking officers took charge of the bank after the impugned transfer. D. W. 3 Amal Kumar Bhadra was all along in the bank and his evidence is to the following effect

89. "What was the practice followed by the Bank so far as this 2 parties are concerned regarding their mutual dealing of their accounts. Have you got any idea.

90. Yes. I have got some idea. Amounts used to be transferred between the accounts of R. N. Ghosh and K. F. Rahman in that away. If one is to be present at the time when the amount is to be deposited then the other partner will come later and confirm it."

91. Mr. Bhadra has given the evidence as to the arrangement between these two partners with regard to their respective accounts. Mr. M. A. Rab D. W. 2 has clearly testified that it is for the banker to be satisfied with the dealing of the customers on whose accounts the transfers are made and could be done by obtaining the signature on vouchers, order or whatever they may arrange with the customer. From this evidence it is clear that the arrangement between these two accounts was such that transfers could be made at the instance of one account holder without waiting for confir mation by the account holder from whose account the transfer was made. As already pointed out Exh. E shows a transfer from the petitioner's account to that of the Opposite‑Party No. 3 which was made only on the instruction of Opposite‑Party No. 3 but no complaint is made by the petitioner with regard to the sum so transferred. Similarly Exh. D shows that the transfer was made at the instance of the Opposite‑Party No. 3 on 9‑3‑64 and the petitioner confirmed it on 28‑3‑64. Therefore this was the arrangement between the bank on the one hand and the two account holders on the other. Therefore it follows that the bank was acting legally in making the transfer in question. So in my opinion the transfer represented by Exh. U was also a legal transfer so far as the bank is concerned.

92. The next point is whether the transfer if valid created any liability on respondent No. 3 and whether respondent No. 3 was liable to re‑imburse the said amount. Mr. Islam has raised serious objection to consideration of this question in the petition filed under section 235 read with section 07 of the Banking Companies Ordinance. Strictly speaking this question falls outside the scope of an inquiry under section 235 of the Companies Act, 1913. Section 235 of the Companies Act reads as follows :

93. 235.‑(I) Where, in the course of winding up a company, it appears that any person who has taken part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the Court may on the application of the liquidator, or of any creditor or contributory made within three years from the date of the first appointment of a liquidator in the winding up or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer, examine into the conduct of the promoter, director, manager liquidator or officer, and compel him to repay or restore the money or property or any part thereof respectively with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplica tion, retainer, misfeasance or breach of trust as the Court thinks just.

(2) This section shall apply notwithstanding that the offence is one for which the offender may be criminally responsible."

94. The section is made applicable to any person who has taken par in the formation or promotion of the company, or any past and present Directors, Manager or liquidator or any officer of the'' company. Mr. R. N. Ghosh does not fall into any of the above categories. But if the second portion of the section is closely examined then Mr. R. N. Ghosh may be made liable. After examining into the conduct of the promoter, Director and t Manager, liquidator or officer the Court can compel him to restore the money or property or any part thereof. Now it is the admitted case of the bank that with the transferred amount Mr. R. N. Ghosh purchased fixed deposit of Rs. 40,000 from the same bank. Therefore the amount of the petitioner was still with the bank on the date of the liquidation and in the name of R. N. Ghosh's wife.

95. Section 67 of the Banking Companies Ordinance reads as follows

96. "67. Special provisions for assessing damages against delinquent directors, etc.‑(1) Where an application is made to the High Court under section 235 of the Companies Act, 1913 (VII of 1913), against any promotor, director, manager, liquidator or officer of a banking company for repayment or restoration of any money or property and the applicant makes out a prima facie case against such person, the High Court shall make an order against such person to repay and restore the money or property unless he proves that he is not liable to make the repayment or restoration either wholly or in part Provided that where such an order is made jointly against two or more such persons, they shall be jointly and severally liable to make the repayment or restoration of the money or property.

(2) Where an application is made to the High Court under section 235 of the Companies Act, 1913 (VII of 1913), and the High Court has reason to believe that a property belongs to any promotor, director, manager, liquidator or officer of the banking company, whether the property stands in the name of such person or of any other person as the ostensible owner, the High Court may, at any time, whether before or after making an order under subsection (1), direct the attachment of such property or of such portion thereof as the High Court may think fit and when the property so attached stands in the name of ostensible owner, it shall remain subject to attachment unless the ostensible owner can prove to the satisfaction of the High Court that he is the real owner and the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), relating to attachment of property shall, as far as may be, apply to such attachment."

97. This section also shows that the application must be directed against any promoter, director, manager, liquidator or officer of a Banking Company. But subsection (2) shows that where any application has been made under section 235 of the Companies Act the High Court has power to follow the property whether ill stands in the name of the above‑mentioned persons or of any other person as the ostensible owner. Therefore this application) is clearly maintainable also against R. N. Ghosli as it is alleged that he purchased fixed deposits with the transferred sum in the name of his wife.

98. Further it appears from section 61 of the Banking Companies Ordinance that all matters in which a Bank in liquidation is involved must be decided by this Court. The liability of Mr. R. N. Ghosh to repay the amount of the transfer cannot be decided without making the Bank a party. As such this question is also to be decided by this Court. Therefore I hold that this point can be and shall be decided by this Court in this application.

99. So far as the liability of Mr. R. N. Ghosh is concerned Exh. G is a complete answer. 1t shows that the partnership business continued till the date of the execution of the said deed of agreement namely Exh. G that is 10th of March 1965. All receipts and payments as between the partners were accounted for up to that date. The outstanding payments due to partnership firm is clearly arranged for in the said agreement. Therefore it is absolutely clear that all sums received on account of the business between the two partners up to 10th March 1965, had been accounted for. In this view of the matter the said sum of Rs. 70,680 must be taken to have been accounted for.

100. That the relationship between the two partners continued even after the liquidation of the bank is further corroborated by the evidence of P. W. 1 himself who clearly admits the agreement Exh. G (excepting the date as regards the commencement of the partnership with which we are not concerned) but also admits he took overdraft of Rs. 1,10,000 from the Commerce Bank Limited against two fixed deposits certificates, one belonging to him and another to Mr. Ghosh each for the value of Rs. 45,000. He further admits that he pledged the fixed deposit of Mrs. Keya Rani Gliosh in the Southern Bank with the Commerce Bank Limited in June and Julv 1964.

101. I am therefore convinced that the good relationship between the partners continued till March 1965, when all these sums due from each other was accounted for and a valid agreement was arrived at. In this view of the matter there is no doubt that Mr. R. N. Ghosh has no liability so far as the sum of Rs. 70,680 is concerned.

102. It is clear that this application is an attempt by the petitioner to make some illegal gain taking advantage of some apparent irregularity and the accommodation given by the Bank. The apparent irregularity proceeded from the accommodation given to the petitioner by the Bank. As regards the charge of collusion of R. N. Ghosh with the Bank Official to the effect that the hurried transfer was made with the knowledge of the forthcoming liquidation I hold that there is no substance. The accounts clearly show that R. N. Ghosh had with the Bank on the date of Liquidation an outstanding sum of Rs. 60,000. In the current account he had favourable balance of Rs. 10,000 and odd and in the fixed deposit account in the name of his wife Mrs. Keya Rani Ghosh he had Rs. 70,000 from which he had taken a loan of Rs. 20,000. If R. N. Ghosh was aware of the coming liquidation, as a prudent man he would not have left this huge sum in the Bonk.

103. In view of the above findings it is not necessary for me to enter into the question of the maintainability of the petition but us arguments were advanced on both sides I would just refer to the same and give my conclusion on this point also. So far as tile charge against the Banking Officer is concerned the applica tion is maintainable both under section 235 of Companies Act and also under section 67 of the Banking Companies Ordinance. All matters relating to a Banking Company in liquidation require to be decided by this Court under section 61 of the Banking Companies Ordinance. As such the petitioner had no other forum and I therefore hold that the petition was maintainable.

104. In conclusion I hold that no consideration was paid for the Cash warrant amounting to a sum of Rs. 11,400 Exh 4. As such the Bank is not liable to pay the sum. I further hold that the transfer made by Exh. U was a valid transfer and the Bank is not liable in any way for the amount of Rs. 70,680. Lastly I hold that the said sum of Rs. 70,680 had been accounted for as between the petitioner and Opposite‑Party no. 3 and as such Mr. R. N. Ghosh is also not liable for the said amount. The petitioner is therefore dismissed with costs. Certified for one counsel for each of the contesting opposite‑parties.

105. A. M/S. A. H. Petition dismissed.