P L D 1969 Dacca 629 (PLP)

M. R. KHAN, J.‑This first appeal by the defendants Nos. 1 and 2 arises out of Money Suit No. 7 of 1956 of the Second Court of the Subordinate Judge, Mymensingh, which on transfer, was re‑numbered as Money Suit No. 2 of 1959 of the First Court of the Subordinate Judge of that place. The suit was instituted by the Official Liquidator of the Das Bank Limited for the recovery of a sum of Rs. 99,319‑13‑9 pies alleged to be due from the defendants under an overdraft account. The case of the plaintiff, as made out in the plaint, is as follows :‑ The Das Bank Ltd;, with its Head office in Calcutta had branches at various places in undivided Bengal. By an order of this High Court, dated 26‑5‑1950, the Das Bank Ltd., as respects its branches in East Pakistan, was wound up. This Court then appointed the Official Receiver as the Official Liquidator of that Bank and authorised the Liquidator to collect the debts and assets of that Bank in East Pakistan. The defendants who used to carry on business in jute and other articles had their principal place of business at Bhairab Bazar in the district of Mymensingh. At Bhairab Bazar, there was a branch of the Das Bank Ltd. For the purpose of obtaining facilities from the Bank, the defendants opened an overdraft account in their names in the Bhairab Bazar branch of the Bank sometime in 1941. According to the contract between the parties and the system of banking business, the defendants used to take money from the Bank and make deposits from time to time. The defendants agreed to pay compound interest with quarterly rests, at the rate of 6 % per annum. The business year of the Bank was from January to December. After an adjustment of the amounts taken and paid by the defendants and after calculation of interest up to the 29th December 1947, it was found that a sum of Rs. 64, 946‑13‑9 was due by the defendants to the Bank under their overdraft account. Further interest of Rs. 35,073 calculated at the rate of 6 % per annum (simple interest) was found to be due from the defendants from the 29th December 1947 up to the date of the institution of the suit on 31‑12‑

56. The defendants paid Rs. 104 towards their debt in July 1949, Rs. 200 in November 1951 and Rs.400 in November 1952. Crediting these payments to the debt, a sum of Rs. 99,319‑13‑9 pies remained as the outstanding liability of the defendants to the Bank. The plaintiff, therefore, brought this suit for the recovery of the said sum of Rs. 99,319‑13‑9 pies with future interest. The defendants 1 and 2 contested the suit by filing a joint written statement. They admitted that their firm Sachuni Ramkanta Podder had an overdraft account in the Bhairab Bazar branch of the Dass Bank Ltd., but contended that the said firm is a Hindu joint family business under the sole charge of the senior member and Karta Nabadwip Chandra Poddar, the defendant No.

1. It was alleged that the said firm had with the Dass Bank Ltd. a number of accounts in its Bhairab Bazar Branch in different names, but the money due under those accounts belonged to the firm. The said firm had also a fixed deposit with the Bank at Bhairab Bazar and was entitled to other dues on account of collection of the firm's bills. Under the different accounts held by the firm, a sum of 96,801‑14‑0 was payable by the Bank to the defendants' firm. Accordingly, the defendants claimed that the plaintiff is not entitled to recover any sum without adjusting their dues the different accounts against the Bank's dues under the disputed overdraft account. They made an allegation that the Agent of the Bank at Bhairab Bazar practised fraud on them by manoeuvring withdrawal of money only from the different accounts of the firm. As regards payments of Rs. 100, Rs. 203 and Rs. 400 as alleged in the plaint, the defendants denied to have made such payments. They further denied the plaintiff's locus standi and his right to bring the suit. The suit. according to them, is barred by limitation, the disputed overdraft account having been closed on the 13th February 1945. The interest claimed in the suit was also alleged to be illegal and excessive. Accord ingly, the defendants denied the plaintiff's right to get any relief. On the pleadings, the following issues were framed in the suit: (1) Has the plaintiff locus standi to maintain the suit? (2) Is the suit maintainable in its present form? (3) Is the claim barred by limitation? Was the account in question closed on Falgoon 1, 1352, corresponding to February 13,1945? Can the alleged payment of Rs. 100 at Calcutta on or about 15‑7‑49 save limitation? Did the defendants made any payment to the Liquidator to save limitation? (4) Was there any agreement between the plaintiff and the defendants about payment of compound interest with quarterly rest? If so, was it legal or valid or enforcible? (5) Did the defendants keep different accounts in different names with the Bank? What amount, if any, is due to the defendants on account of the same? Are the defendants entitled to a set‑off? (6) Was the Bhairab agent of the Bank of the material time responsible for making the defendants ‑debtors to the Bank by his mala fide and fraudulent activities? (7) For what amount, if any, is the plaintiff entitled to get a decree against the defendant? The trial Court answered the issues in favour of the plaintiff and decreed the suit in full. Exh. A is a current account pass‑book of the Das Bank Ltd. in the name of Messrs Sachuni Ramkanta Poddar of Bhairab. The corresponding Ledger of that current account is Exh.

4. It appears from the pass‑book that the said account which is the overdraft account in dispute was opened at the Bhairab Bazar Branch on 24‑11‑41 apparently by the defendant's father Ramkanta Poddar who, according to the defendant No. 1 (D. W. 1), died in Chaitra, 1352 B. S. corresponding to April 1945. According to the said pass book and the Ledger, the firm Messrs Sachuni. Ramkanta Poddar, the holder of the disputed overdraft account was liable for Rs. 64946‑13‑9 pies up to the 29th December 1947. Thereafter, simple interest at the rate of 6 % per annum, as it appears from para. 9 of the plaint, was calculated so as to make the total claim at Rs. 1,000,19‑13

9. After deducting the alleged payments of Rs. 100, Rs. 200 and Rs. 400/ that is Rs. 700 in all from the said sum of Rs. 1,00,19‑13‑9, the plaintiff laid his claim at Rs. 99,319‑13‑9 pies which appears, to be substantiated by the entries in the Pass Book Exh. A and the Ledger Exh.

4. It is an admitted fact the Dass Bank Ltd., as respect its branches in East Pakistan, went into iquidation. The application for winding up of the branches in East Pakistan as stated by the plaintiff's witness No. I Serajul Islam, was made on 12‑8‑

49. The High Court made the order of liquidation on 26‑5‑50 vide Exh. 1, and by the same order appointed the Official Receiver as the Official Liquidator of that Bank. By its subsequent order, dated 27‑4‑51 Exh. 1 (a), the High Court authorised the Official Liquidator to institute suits and other legal proceedings to realise the Bank's assets in East Pakistan. The plaintiff who is the Official Liquidator of the Dass Bank Ltd., was, therefore, competent to bring this suit for recovery of the dues of the Bank. As stated in paragraph 16 of the written statement, the firm Messrs Sachuni Ramkanta Poddar had other accounts in the Bhairab Bazar Branch of the Dass Bank Ltd. In different names. These are Current Account No. 260 in the name of Nabadwip Poddar, Savings Bank Account No. 131 in the name of Nabadwip Chandra Poddar, Savings Bank Account No. 99 in the name of Nabadwip Chandra Poddar, Savings Bank Account No. 132 in the name of defendants' mother Rajkumari Poddar and Savings Bank Account No. 200 in the name of Nitai Chandra Poddar, a son of the defendant No. 1 and a further current Account in the name of defendant firm whose number has not been given in the written statement. Besides, there was a fixed deposit with the Bank at Bhairab Bazar Branch in the name of defendant No.

1. Also there was a Cash Certificate in the name of that defendant. The Pass Books Exhs. A (I) to 1 (5) and Exh. B were produced by the defendants to show that such accounts in the said names were there in the Bhairb Bazar branch of the Dass Bank Ltd. Mr. D. C. Bhattacherjee, the learned Advocate for the defendants‑appellants has pressed mainly two points in this appeal. He firstly contends that, before instituting the Suit, the Official Liquidator of the Dass Bank Ltd. should have first set off or adjusted the sums due to the defendants' firm under the aforesaid accounts against the amount due to the Bank under the disputed overdraft Account in the name of Messrs Sachuni Ramkanta Poddar and that defendants are entitled in enquiry to claim such set‑off. This gives rise to a question whether the firm Messrs Sachuni Ramkanta Poddar is a Hindu joint family business as alleged in the defence and whether the disputed overdraft account standing in the name of that firm is a joint family account of the defendants. According to the evidence of the defendant No. 1 (D. W. 1), the said firm in whose name the disputed account was opened is a Hindu joint family firm of which the three defendants of this suit are its owners and that he himself is the Karta of the joint family. Apparently, the disputed account was opened at a time when the defendants' father Ramkanta Poddar was alive. In fact, the account was opened after the name of their father. That being so, Rajkumari Poddar, the widow of Ramkanta Poddar would have been one of the owners of the firm in accordance with the provisions of Hindu Women's Right Property Act, 1937, if the firm Sachuni Ramkanta Poddar was a joint family firm. But this Rajkumari Poddar, according to the evidence of the defendant No. 1, is not a owner of that firm, because that defendant deposed that the only owners of that firm are the three defendants of this suit. This goes against the firm being a joint family firm. Of the several accounts named in paragraph 16 of the written statement, the Savings Bank Account No. 132 is in the name of Rajkumari Poddar and the Savings Bank Account No. 200 is in the name of Nitai Chandra Poddar, a son of the defendant No. 1 Rajkumari Poddar was not examined in this case to prove if the Savings Bank account No. 132 standing in her name was a joint family account or her personal account. Same is the case with the Savings Bank Account No. 200 inasmuch as Nitai Chandra Poddar the holder of that account was not also examined. On the contrary the defendant No. 1, as D. W. 1, stated that the three defendants alone are the owners of the firm. He admitted in cross‑examina tion that their firm account and the home account are separate. The defendant No. 3 Hari Mohan Poddar, according to the evidence of the manager of the firm Sachuni Ramkanta Poddar (D. W. 2), has been living separately from the other defendants for a long time and has been in Calcutta. This is yet another circumstance going against the firm being a joint family firm. Agreeing with the trial Court, we are, therefore of the opinion that the disputed overdraft account in the name of the firm Messrs Sachuni Ramkanta Poddar's is an account of the defendants 1 to 3 alone and that it is separate from the other accounts maintained in different names which are the personal accounts of the persons in whose name they stand. In this view of the matter, we do not find any substance in the contention of Mr. Bhattacherjee that the sums due under the several accounts stated in paragraph 16 of the written statement should have been set off or adjusted against the amount due to the Bank under the disputed account. The defendants could have claimed a set‑off or adjustment in the winding up proceedings, but this was not done. Nor did the defendants claim any set‑off in this suit on payment of the requisite court‑fees. That being so, we hold that the suit in respect of the disputed account in the name of Messrs Sachuni Ramkanta Poddar at the instance of the plaintiff is maintainable without any set off or adjustment as claimed on behalf of the defendants. The next point urged by Mr. D. C. Bhattacherjee is that the payment of Rs. 100, Rs. 200 and Rs. 400 as alleged in the plaint are not true and that even if these payments are true, the same could not save limitation and that the suit, in any event, is barred by limitation. The defendants' overdraft account, that is, the disputed account in the name of the firm Messrs Sachuni Ramkanta Poddar has been held by the trial Court to be a mutual, open and current account. Accordingly, the suit, in the opinion of that Court, is governed by Article 85 of the First Schedule to the Limitation Act. The plaintiff adduced evidence to show that the defendants paid Rs. 100 on 15‑7‑49, Rs. 200 on 14‑11‑51 and Rs. 400 on 4‑11‑

53. Believing these payments to be true, the trial Court has held that the suit having been instituted within 3 years of the close of the year 1953 (that is, the year in which the alleged payment of Rs. 400 was made for the last time) is not barred by limitation. Before dealing with the question as to the truth of the alleged payments and their legal effect on the point of limitation, it is necessary to consider the nature of the defendants' overdraft account with the Dass Bank Ltd. In order to apply Article 85 of the Limitation Act in any given case, the account concerned must be mutual, open and current account. For an account properly to be called a mutual account, there must be mutual dealings which may bring both the parties under liability to each other. To constitute a mutual account between two parties, the essence of the transactions should be looked at in order to find out if these create independent obligations on both sides, giving rise to occasions or possibility of reciprocal demands. In the case of Tea Finance Syndicate Ltd. v. Chandra Kamal Bezboarah (34 C W N 1175) Rankin, C. J. observed: "The conditions of the applicability of Art. 85 are not, I think obscure. There must be cross‑claims arising out of a course of dealing which evidences or is referable to an intention of set‑off. The phrase `reciprocal demands, does not import it that either party has made an actual demand in fact." In the same case, C. C. Ghose, J. explained a mutual account as follows: "As I understand the matter, there must be a mutual credit founded on a subsisting debt on the other side, or an express or an implied agreement for a set‑off of mutual debts." in the case of Karsondas Dhunjibhoy & Co. v. Surajbhan Ramrijpal (I L R 58 Bom. 200) it was observed: "In order that an account should be mutual there must be dealings between the parties and such dealings must be capable of giving rise to independent obligations on each side of the account at any given period or stage. One test commonly applied is the possibility of shifting balances sometimes in favour of one party and sometimes in favour of the other. But as observed in several reported decisions that test is not decisive or conclusive of the matter. The real test is whether the dealings between the parties are of such a nature that the balance might so shift." An open account is one where there are running transactions between the parties, and the account is kept open so as to enable the parties to have future dealings. Next, a current account is an open account which is running, unsettled or unclosed. Such an, account contains transactions between the parties from which the balance due to one or the other party can be ascertained. The' meaning of an open and current account was explained in the aforesaid Bombay case I L R 58 Bom. 200 as follows: "An account current means a running account, that is an. account which is continued and not stopped or closed. If the account is running, that is to say, if it is unclosed, then it is open and current. It is open either because the balance remains to be drawn or struck, or because it is to be carried' forward because of some contemplated future dealings between the parties. If the account is not closed by settlement or, otherwise, it is open. Of course mere cessation of the dealings between the parties does not mean that the account is closed. The real question in each case would be what is the intention of the parties, and that must be inferred from the surrounding circumstances." We are at one with this view as regards the meaning of an open and current account. It appears from the pass book Exh. A and the corresponding Ledger Exh. 4 that the defendants used to take advances‑ from the Bhairab Bazar branch of the Dass Bank Ltd. and they also used to make deposits from time to time. There were both with drawals and deposits with the result that at times the defendants became debtors to the Bank and at others the Bank became indebted to the defendants. The said pass book and the Ledger show that there were many transactions between the parties and that these created independent obligations of one against the other and thereby gave rise to occasions of reciprocal demands: Having regard to the nature of the transactions creating, independent obligations of one party or the other, it can be safely said that the disputed overdraft account of the defendants was: mutual, open and current account within the meaning of Article 85 of the Limitation Act, as has been rightly held by the trial Court. Mr. D. C. Bhattacharjee contends that even if the disputed" account was a mutual, open and current account, Article 85 of the Limitation is not applicable in this case for the reason that their account was closed long before the institution of the suit. According to the Pass Book and the Ledger, the last transaction between the parties in respect of the disputed account was on 22‑7‑1947 On that date, there were both deposit and with drawal. Now, it is an admitted fact that the Bhairab Bazar Branch of the Dass Bank Ltd. was closed on 6‑11‑1947. This is obvious from the plaintiff's own document Exh. 2 which is a list of the branches of that Bank in East Pakistan which were closed. According to the evidence of the plaintiff's Officer, P. W. 1, the records of the Bhairab Bazar Branch were taken away to the Bank's Head Office in Calcutta after the closure of the branch at Bhairab Bazar. This is also evident from the Bank's letter Exh. 1 (g), according to which records of a number of branches in East Pakistan including those of the Bhairab Bazar Branch had been taken away to the Bank's Head office after the branches in East Pakistan bad been closed. After the closure of the branches in East Pakistan, an application for winding up of the Dass Bank Ltd., as respects its branches in East Pakistan, was made on 12‑8‑1949 as admitted by P. W.

1. The High Court made the order winding up the Dass Bank on 26‑5‑50 vide Exh.

1. From these facts about which there is no dispute, it is abundantly clear that the Bhairab Bazar Branch, in which the disputed account was maintained, was closed down as early as 6‑11‑1947 without any possibility of any future dealings or transactions between the parties in respect of that account. At any rate, after the winding up of the Dass Bank branches in East Pakistan on 26‑5‑50, the question of the disputed account's remaining mutual, open and current could not arise. This means that at the date of the institution of the suit on 31‑12‑56, the disputed account was no longer a mutual, open and current account, the same having been closed long ago. In order to attract the application of Article 85 of the Limitation Act, it is necessary that the account must be subsisting at the date of the suit. In this connection, we may quote with approval the follow ing observation of Beaumont, C. J. in the case reported in I L R 58 Bom. 200 "In order to bring himself within Article 85 a plaintiff must show that he is suing for the balance due on a mutual, open and current account. If in fact at the date when he starts the suit there is no open account, then he cannot say that he is suing for the balance due on such an account." , As the account in this case was closed down long before the institution of the suit. Mr. Bhattacharjee is right in his con tention that Article 85 does not apply here. We have looked into the other Articles of the Limitation Act relating to recovery of money due on one ground or the other, and it seems to us that Article 57 is applicable here according to which the period of limitation for bringing a suit for money payable for money lent, is 3 years from the time when the loan is made. Of the three sums alleged to have been received by the plaintiff from the defendants, the last payment of Rs. 400 was said to have been made on 4‑11‑

53. Even if the alleged three payments including the last one are true, these could not save the limitation, because the suit was filed beyond 3 years from 4‑I 1‑1953, the date of the last payment. There is yet another reason why the alleged payments, even if true, could not save limitation. The reason is that none of the alleged payments of Rs. 100, Rs. 200 and Rs. 400 was in accordance with the provisions of section 19 or section 20 of the Limitation Act. 1n other words, none of the alleged payments was acknowledged in writing, as required by the said sections. As a matter of fact, one of the three alleged payments, strictly speaking, was not duly proved. It is alleged in the plaint that a sum of Rs. 100 was paid by the defendants to the Head Office of the Dass Bank Ltd. in Calcutta on 15‑7‑

49. In support of this, a copy of register‑Exh. 4 (a) was obtained by the plaintiff‑Liquidator from the Head Office of the Dass Bank in Calcutta. This is a copy of an entry in the cash‑book of the Das Bank's Head Office which was certified by some one on behalf of the Bank that the entries therein were made in the usual and ordinary course of business. P. W. 1 Serajul Islam who tried to prove Exh. 4 (a) does not know the person who gave that certificate on the body of that exhibit, nor is he personally acquainted with the signature and handwriting of the giver of the said certificate. This witness received correspondence from the Head Office of the Dass Bank, and it was only on the basis of such correspondences that he formed the impression that the certificate in Exh. 4 (al was the certificate given by the Manager of the Bank at its Head Office. Such evidence does not legally prove that Exh. 4 (a) was a true copy of an entry in the cash book maintained at the Bank's Head Office in Calcutta and that the entries in that cash‑book were made in usual and ordinary course of business. Apart from this, it is doubtful if the certificate given by the Manager of a foreign bank from a foreign IL country, as in this case, is admissible in evidence under our Bankers' Books Evidence Act, 1891. It is true that an Act corresponding o our Bankers' Books Evidence Act is there in India, but it cannot be said that the certificate in Exh 4 (a) is the certificate pursuant to our law. As retards the other payments of Rs. 200 and Rs. 400, we agree with the trial Court that the plaintiff succeeded in proving that the said sums were realised from the defendants. The counter‑foils Exhs. 6 and 6 (a) and the entries in the plaintiff‑Liquidator's cash book Exhs. 5 and 5(a) read with evidence of P. W. 1 are sufficient to prove that the defendants paid Rs. 200 on 14‑11‑1951 and another sum of Rs. 400 on 4‑11‑1953. As, however none of these payments was a payment in accordance with the provisions of section 19 or 20, of the Limitation Act, such payments, though true, could not create a fresh starting point of limitation. Hence the suit instituted as late as on 31‑12‑56 is apparently barred by limitation. A further consideration with regard to limitation, however, rises on account of the promulgation of the Banking Companies Ordinance, 1962 on the 7th June 1962. Section 73 of the said Ordinance which provides for a special period of limitation in respect of a claim by a banking company which is being wound up is as follows: "

73. Special period of limitation.‑(1) Notwithstanding anything to the contrary contained in the Limitation Act, 1908 (IX of 1908), or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded. (2) Notwithstanding anything to the contrary contained in the Limitation Act, 1908 (IX of 1908), or section 235 of the Companies Act, 1913 (VII of 1913), or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director of a banking company which is being wound up or for the enforcement by the banking company against any of its directors of any claim based on a contract, express or implied; and in respect of all other claims by the banking company against its directors, the period of limitations shall be twelve years from the date of the accrual of such claims or five years from the date of the first appointment of the liquidator, which ever is longer. (3) The provisions of this section, in so far as they relate to banking companies being wound up, shall also apply to a banking company in respect of which a petition for the winding up has been presented before the commencement of this Ordinance." Mr. D. C. Bhattacharjee strenuously urges that the provisions of subsection (1) of section 73 enlarging the period of limitation are applicable only in cases where suits are brought or application made after the commencement of that Ordinance, but the provisions of that subsection do not apply to suits instituted or application made earlier and were pending on the date of the Ordinance. Section 73 of the Ordinance ordinarily applies to banking companies which are being wound up in accordance with the provisions for winding up contained in the Ordinance itself, namely, the provisions of sections 40, 45 and 49 of the Ordinance. Subsection (3) of section 73, however, extends, as a special case, the provisions of that section also to a banking company in respect of which a petition for the winding up was presented before the commencement of the Ordinance. This means that the advantage with regard to limitation created by section 73 (1) is also available to a banking company in respect of which a petition for winding up had been made prior to the coming into force of the Ordinance. In this case, an application for winding up of the Dass Bank Ltd., as respects its branches in East Pakistan, was made on 12‑8‑

49. Hence, the plaintiff as the Liquidator of the said Bank can, in view of subsection (3) of section 73, get the benefit of limitation under subsection (1) of that section provided the contention of Mr. Bhattacharjee that section 73(1) applies only to suit brought or application made after the coming into force of the Ordinance, is not correct. This gives rise to a question as to whether the provisions of section 73 (1) with regard to limitation are retrospective in operation. The law of limitation applicable to a suit or proceed ing is the law in force at the time of the institution of the suit or proceeding unless there is a distinct provision to the contrary. This view was approved by their Lordships of the Privy Council in the case of Lala Soni Ram v. Kanhaiya Lal (40 I A 74). In the case of Mt. Allah Rakhi v. Shah Muhammad Abdur Rahim (A I R 1934 P C 77) their Lordships of the Privy Council made the following observation with regard to the applicability of the law of limitation "It was provided by S. I. (2) that the said Amendment Act should come into force on first January 1929. The suit, which is the subject of this appeal, was brought on 29th January 1926, and the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at that time." On this principle, the law of limitation as was in force at the date of the institution of the present suit, would govern this case, unless section 73 (1) of the Banking Companies Ordinance is found to be retrospective in operation. Section 73 does not expressly state if the provisions thereof have retrospective effect. An examination of the Ordinance seems to offer a guide in this regard. It appears from Part IV of the Ordinance which includes section 73 that with the coming into force of the Ordinance any claim made by or against a banking company which is being wound up, came under the exclusive jurisdiction of the High Court. This is expressly provided in section 61 of the Ordinance section 62 makes provisions with regard to pending proceedings according to which all such proceedings may be transferred to the High Court for disposal. If, however, any pending proceed ing be not so transferred to the High Court, the same shall be continued in the ‑Court in which the proceeding was pending. Thus the Ordinance makes a distinction between pending proceedings and suits brought or application made after the commencement of the Ordinance. Section 73(1) provides that in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from to date of the presentation of the petition for the winding up of the banking company shall be excluded. It is significant that subsection (1) of section 73 refers to the commencing date of the period as to be calculated for the purpose of exclusion. This implies that the last date of the period to be excluded in computing the period of limitation is the date of the institution of the suit or, as the case may be, the date of making the application, after the coming into force of the Ordinance. So, it seems that section 73 (1) refers to suits or applications to be brought or made after the commencement of the Ordinance, that is, prospective suits and applications, whereas section 62 refers to pending proceedings. This distinction between pending proceedings on one hand and prospective suits and applications on the other appears to be partinent. Bearing this distinction in mind, it can reasonably be said that section 73(1) which, in effect, enlarges the period of limitation, is applicable only to suits brought or applications made after the coming into force of the Ordinance and not to pending proceedings. Section 63 of the Ordinance which empowers the High Court to settle the list of debtors appears to offer yet another guide as to whether section 73 (1) is applicable only to prospective suits and applications. Section 63 apparently applies to a banking company which is being wound up in accordance with the relevant provisions of the Ordinance, but does not apply to a banking company in respect of which an application for winding up was made‑ prior to the commencement of the Ordinance. However, this section 63 provides that within a certain time limit, the High Court can settle the list of debtors of a banking company which is being wound up. On the settlement of such list, the sum found due against a debtor becomes the debt payable by him to the banking company concerned. The High Court's order, by operation of law, becomes an effective decree, and a certificate granted by the High Court under the said section shall be deemed to be a certified copy of the decree for all purposes including execution. Now, in the settlement of list of debtors by the High Court under section 63, no benefit of limitation as envisaged in section 73 (l) is available to a banking company which is being wound up, such benefit being confined only to suits and applications for recovery of debts. This means that if the list of debtors is to be settled in accordance with section 63, the normal rule of limitation shall apply, but if the debt due by any debtor has become time barred in the mean time under the normal rule, then, a suit brought after the commencement of the Ordinance may save the debt from limitation under section 73(1) if the provisions thereof are otherwise applicable. In fact, the official liquidator's alternative right to recover such debt by a suit is recognised in clause (b) of subsection (10) of section

63. We, therefore, think that the contention of Mr. Bhattacharjee that section 73 (1) of the Ordinance applies to suits or applications brought or made after the coming into force of the Ordinance, is correct. The present suit was brought long before the birth of the Ordinance. Section 73 cannot, therefore, be invoked by the plaintiff to save his suit from limitation which is otherwise time barred. Accordingly, we hold that the suit is barred by limita tion. No other point was pressed in this appeal. In the result, we allow the appeal, set aside 'the judgment and decree of the trial Court and dismiss the suit. We leave the parties to bear their own costs. MAKSUM‑UL‑HAKIM, J.‑‑I agree. A. E./S. A. H. Appeal allowed.