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PETITIONER: SREE BANK LTD.

       Vs.

RESPONDENT: SARKAR DUTT ROY AND CO.

DATE OF JUDGMENT: 09/04/1965

BENCH:

ACT:     Banking Companies Act (10 of 1949’), s. 45-O and Banking Companies  (Amendment)  Act (52 of  1953)--Applicability  to instalment decree.

HEADNOTE:     In  1949,  the Banking Companies Act was passed  with  a view  to protect and secure the interests of depositors.  In 1953   s.  45-O  was  enacted  by  the   Banking   Companies (Amendment)  Act, in pursuance   of the  recommendations  of the  Banking  Companies Liquidation  Proceedings  Committee. Section  45-O (1) provided that in computing the  period  of limitation  prescribed  for  an  application  by  a  banking company which is being wound up, the period commencing  from the  date  of the presentation of the  winding  up  petition shall be excluded; and s. 45-O (3) provided that sub-s.  (1) shall  also apply to a banking company in respect  of  which the   winding-up   petition   was   presented   before   the commencement  of the Amendment Act, that is,  30th  December 1953. On 1st May 1947, a decree for a sum of money had been passed in   favour   of   the    appellant--Bank,    against    the respondents.  The decree provided that the amount which  was due on 30th May should be paid in 6 annual instalments  each payable on 30th December from 1947 to 1952.  The decree also provided   that  if  the  respondents  failed  to  pay   any instalment  within  4  months  of  its  becoming  due,   the appellant shall be entitled to realise all the amounts  then due, by execution.  None of the instalments was paid. On May 11,  1948  a petition for winding up of  the  appellant  was presented  and  it was ordered to be wound up on  August  3, 1948.  In  August  1956 the liquidator  filed  an  execution application  on  the original side of the  High  Court,  for realising the amounts.  The application was allowed, but the High  Court,  in  Letters  Patent  Appeal,  held  that   the application was barred by time. In   appeal  to  this  Court,  the    appellant    contended that  in  view of s. 45-O the application was  within  time: while   the   respondents  contended  that:  (1)   all   the instalments  fell  due by 1st May 1948 by operation  of  the default clause, and therefore, the application was barred by Art. 182 (7) of the Limitation Act, 1908, by the time s. 45- 0  was brought on the statute book; (ii) the section has  no retrospective  operation so as to revive a debt  which   had become barred at the date of its enactment; and (iii) if the default clause gave only an option to the appellant so  that it could apply for execution as and when an instalment  fell due, then, the instalments which fell due in 1947, 1948  and 1949 had become barred before the enactment of the  section;

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and the instalments which fell due during the years 1948  to 1952 were also not saved from the bar of limitation, as  the section  applied  only  to those cases where  the  right  to execute had arisen before the presentation of the winding-up petition.                    709     HELD: (By full Court): Section 45-0 saved the  execution application  from  the  bar of limitation  imposed  by  Art. 182(7) of the Limitation Act. [712H; 719A; 727D; 742A]     (i)  Per Sarkar, J: The right to apply for execution  in respect  of  the instalments under the decree arose  on  the dates on which they respectively fell due. [713H]     The  default clause was only  intended  for the  benefit of the appellant and gave an option to the appellant to  sue for  the entire amount or waive the benefit of  the  option, and  the appellant had not taken advantage of it. [713D,  E, H]     Ram  Culpo  Bhattacharji v. Ram  Chunder  Shome,  (1887) I.L.R. 14 Cal. 352, referred to.     (ii) Per Sarkar, J: There is no reason why a distinction should  have  been  intended  between  debtors,  the  claims against whom might have become barred before the section was enacted  and those,  the claims against whom, became  barred thereafter.  In  fact, the object of the  section  would  be better achieved by applying it to both classes. [715 F-G]     One of the methods by which, the object of the Act which was to protect depositors, could be achieved is by extending the period of limitation for enforcement of the claims of  a bank in liquidation, so that more money may be collected for payment  to  the  depositors. That  being  so,  the  largest extension of the period, which the language used is  capable of, must have been intended. [715E-F]     Besides,   s.  45-O(3)  expressly  makes   sub-s.   (1), applicable to a banking company being would up on a petition presented  before 30th December 1953  Under s.  45-0(1)  and (3) a period which had started to run before that date could be  excluded, and, there is no hint that such  exclusion  is confined  to cases where the right had not become barred  by that  date.  Subs. (3) must have been intended to give  full retrospective effect to subs. (1), as otherwise, it need not have  been  enacted, because, sub-s. (1) would, by  its  own terms, apply to cases of winding up on a petition  presented before  the Amending Act, and, considering the intention  of the  Act,  sub-s.  (3) could  not have  been  enacted  as  a surplusage  or ex abundanti cautela.  Therefore, s.  45-0(1) applies  to applications by the banking company,  even  when they had become barred before the Amending Act. [716 B-E  H; 717 C]     Per  Wanchoo,  J:  The appellant would  be  entitled  to exclude  the entire period from 11th May 1948--the  date  of presentation of the winding-up application--upto the date of the  execution  application and would thus  be  entitled  to execute  the decree for the total of the 6 instalments  due. [726 E]     The language of s. 45-0(1) implies that it was meant  to be retrospective and that conclusion becomes inevitable when it is read with sub-s. (3), in the background of the  remedy that the legislature intended to provide for the benefit  of depositors.  Section  45-0(1) imperatively  lava  down  that where an application is filed by a banking company which was being would up on or after 30th December 1953 the Court must exclude   the   period  commencing  from  the   date      of presentation  of the winding up petition to the date of  the application  in computing the period of limitation.  Further by  virtue of subs (3), subs. (1) applies not only to  those

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banking  companies  which were being wound up  on  petitions presented on or after the section came into force, but  also to those banking companies where the winding-up petition was made  before 30th December 1953 and whether the  winding  up order  was  made  before or after  that  date  provided  the banking  company was in the process of being wound  up  when the  application was filed; and, there is no scope for   the court  to  consider 710 whether the application, if filed before 30th December 1953, would barred by limitation or not. [722H; 723 A-B, D-E;  724 E]     Per  Raghubar Dayal J: The appellant’s  application  for execution  is maintainable and not barred by time,  because, the effect of s. 45-0(1) is that, in applications made by  a banking  company  which  is being would  up,  or  for  whose winding  up  a  petition  has  been  presented  before  30th December  1953, the period of limitation is arrested on  the date of the presentation of the winding up petition, and  it is  not  material  whether such date is  earlier  than  30th December  1953  or  net.   Therefore,  the  sub-section   is retrospective, and an application can be made even in regard to matters with respect to which such action could be  taken on the date of the presentation of the windup petition,  but could  not  be  taken, because of efflux of  time,  on  30th December 1953. [731C; 736G. 737E]     One  of the conditions for the application of  the  sub- section  is that a "banking company is being wound up",  and this  condition  would be satisfied by  all  companies  with respect  to  which winding up orders had  been  made  either before  30th December 1953 or thereafter.  There is  nothing in  the language of the sub-section to limit the  expression to those companies which respect to which winding up  orders are made subsequent to that date.  The provision is not  for the benefit of such companies only, but, is for the  benefit of all companies which would be in the process of winding up during  the  enforcement of the Act.  This is also  apparent when  sub-ss. (1) and (3) are read together.  So  read,  the period  of exclusion would be available in  connection  with applications by a banking company which is being wound up or with  respect  to which a petition for winding up  has  keen made prior to 30th December 1953.  If the provisions of sub- s.  (1) can apply to the banking companies with  respect  to which proceedings on a winding petition were pending on 30th December 1953, there is no reason why they should not  apply to banking companies with respect to which winding up orders had been made prior ’to that date.  Further, if a restricted interpretation  is given to sub-s. (1), by confining  it  to cases  where  the  cause of action was not  barred  on  30th December  1953,  then  sub-s.  (3)  will  have  no  utility, because,  that  sub-section  only  provides  that   whatever advantage  a banking company can derive from the  provisions of sub-s. (1) when it is being wound up, would be  available to  it even if it is not being wound up, if a  petition  for its  winding  up had been presented prior to  30th  December 1953.   The only case in which the banking company can  take advantage  of sub-s. (3), then, would be vhen the  cause  of action  for the application has not lapsed by that date  and the proceedings on a winding up application were pending  on that date.  But, such cases would be covered by the language of sub-s. (1)itself, for, the cause of action would be alive on 30th December 1953 and the winding up order would be made subsequent to that date. [734-B-E; 736B, E-H] Case law referred to.     (iii)  Per Sarkar and Raghubar Dayal, JJ.:  Section  45-

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0(1)  should  be  read as permitting the  exclusion  of  the entire  period commencing from the date of the  presentation of the winding up petition where the debts became due before that  date,  and,  in  cases  There  the  debt  became   due subsequently such part of that period as commences from  the date of the accrual of the debt. [718E; 741F]     Per  Sarkar, J.: There is no reason why it  should  have been   intended  that  debts  which  fell  due  before   the presentation of the winding up petition but were not  barred by that date could be                    711 recovered,  and not those which became due  thereafter.   No doubt,  if the sub-section is applied to the case of a  debt accruing due to a banking company after the presentation  of a winding up petition, such a debt would be completely  free from the bar of  limitation, but since it has that effect in the   case  of  debts  which  accrued  due  prior   to   the presentation  of the petit,ion and had not become barred  on that  date, the section must be construed as permitting  the whole of the period commencing from the presentation of  the petition to  be excluded where in fact it could be done, and a  part of that period only where the whole of it could  not be excluded. [717F, H; 718C, H]      Cortis  v. The Kent Water Works Company, 7 B &  C  314, referred to.      Per  Raghubar Dayal, J: The appellant waived its  right under the default clause of the decree and sought  execution for the realisation of the various instalments. Even so  the execution  application was within time, because,  a  banking company is entitled to exclude, the period from the date  on which  the  winding up petition was presented upto the  date of  the institution of the application, from the  period  of limitation  prescribed,  and it would be illogical  to  hold that it is not entitled to ask that a shorter period, as the case would be, when the cause of action arose subsequent  to the  presentation  of  the winding up  petition,  should  be excluded.  It may be that this means, the entire  period  of limitation  is  abrogated with respect to causes  of  action arising  subsequent to the date of the winding up  petition, but  it would be anomalous to hold that action can be  taken with  the help of the sub-section with respect to causes  of action’  which had arisen much earlier than the date of  the presentation  of the winding up petition, but action  cannot be taken with respect to causes of action arising subsequent to  such  a  date  if  it had  not  been  taken  within  the prescribed period of limitation. [740G, 741C, G-H]     Per Wanchoo J.:  The present case is governed by s.  45- 0(3)’ because, the winding up petition was presented  before s.  45-0(1)  came into force, but by virtue of  sub-s.  (3), sub-s. ’(1) would apply. As there was default in the payment of  the instalment due on 30th December 1947, the  right  to execute all the remaining instalments arose on ist May  1948 and since that right was not waived, limitation for all  the instalments began even on ist May 1948, while the winding up application  was  filed  on  11th  May  1948,  and  so,  the appellant  could take advantage of the section  and  execute the decree for the entire amount. [726A-E; 727C-D]     Exclusion  of time cannot take place where time has  not begun  to  run  before the date  from  which  the  exclusion begins. Therefore, in order that s. 45-0(1) should apply, it is   necessary  that  the  period  of  limitation  for   the application  should  have begun to run before  the  date  of winding up petition, but should not have run out. [724-C]     On  this  interpretation,  in  the  case  of  instalment decrees  without  a default clause,  the  instalments  which

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became due and were not paid before the winding up  petition may  be  recoverable  by execution, while  in  the  case  of instalments  which became due after the presentation of  the petition,  the exclusion provided by the  section would  not come  into play.  But if the sub-section is  interpreted  as stopping limitation in all cases, after the presentation  of the winding up petition, it will result in another  anomaly, that there would be no limitation at all in a case where the liquidator files a suit and gets a decree. [7241; 725A] 712

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:  Civil Appeal No.  76  of 1952.     Appeal  from the judgment and order dated September  22, 1959  of  the Calcutta High Court in  Appeal  from  original order No. 230/1958. A.N.  Sinha  and  P.K. Mukherjee, for  the  appellant.  D.N. Mukherjee, for the respondent. The following judgments were delivered:     Sarkar, J. On May 1, 1947, a decree was passed in favour of the appellant bank against the respondents by consent  of parties for payment of Rs. 31,000/- in the manner specified. The  decree provided that if the respondents failed  to  pay any of the instalments mentioned in it within four months of the  date  of its becoming due, the  appellant  bank  "shall deem all ... instalments in default and shall be entitled to realise  all the said amounts by execution".    The  amounts payable under the decree by May 30, 1947 were all duly paid. That  left  a  sum of Rs. 21,000/-  payable  by  six  annual instalments,  each payable on the 30th December of  a  year, the  first instalment being payable in 1947 and the last  in 1952.  None of these instalments was paid and an application for realising them by execution was made on August 26, 1957. In the meantime a petition for winding up the appellant bank had been presented on May 11, 1948 and an order for  winding up  had  been  made  on August  3,  1948.   Since  then  the appellant  bank has been in the course of winding  up.   The application for execution was made by the liquidator in  the course of the winding up.     Under   Art.  182(7)  of  the  First  Schedule  to   the Limitation  Act 1908 an application for execution is  barred if  not made within three years from the date on  which  the amount  sought to be realised was payable under the  decree. On December 30, 1953, s. 45-O was introduced in the  Banking Companies  Act,  1949 by the Banking  Companies  (Amendment) Act,  1953.   Sub-section (1) of that section  is  in  these terms:                   S.  45-0. (1) Notwithstanding anything  to               the   contrary   contained   in   the   Indian               Limitation  Act, 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. The  appellant  bank  claims that  this  section  saves  its application for execution from the bar of limitation imposed by  Art. 182(7). The respondents’ answer to this  contention is  first  that s. 45-O has no retrospective  operation;  it does not revive a debt which was already barred at the  date

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of its enactment.  Then they say that              713 all  the  instalments  fell due on April  29,  1948  by  the operation of the default clause and therefore, they were all barred  under Art. 182(7) by December 30, 1953 when s.  45-O was  brought on the statute book.  Thirdly they say that  if it  is held that the default clause gave the appellant  bank an option which it had not exercised and the right to  apply for  execution  in respect of the instalments arose  on  the dates they respectively fell due, the instalments which fell due  on  December 30 of the years 1947, 1948  and  1949  had become  barred before the date of the enactment of  s.  45-0 and  that section could not revive them and the  instalments which fell due in the years 1948, 1949, 1950, 1951 and  1952 were  not saved from the bar of limitation by s. 45-0 as  it provided  for  exclusion  of a period  commencing  from  the presentation of the petition for winding and was, therefore, confined  to  cases where the right had arisen  before  such presentation, which the right in regard to these instalments had not.     First,  as to the effect of the default clause, no  real difficulty  arises.   It  obviously gave an  option  to  the appellant.   As  was said in Ram Culpo Bhattacharji  v.  Ram Chunder Shome(1), "The proviso by which the whole amount  of the  decree becomes due upon default in payment of  any  one instalment  is a proviso which, look at it how you will,  is put  in for the benefit of the creditor, the  decree-holder, and  his  benefit alone; and when a proviso is  put  into  a contract or security, and in ’security’ I include  ’decree,’ for the benefit of one individual party, he can waive it, if he  thinks  fit."  There is not the  least  doubt  that  the default  clause  in the case in hand was  intended  for  the benefit  of the appellant bank; the clause had no  operation till the appellant bank wanted to take advantage of it.  The High  Court  took  that  view and with that  I  am  in  full agreement.  The High Court further held that  the  appellant bank  had not exercised the option to enforce  that  clause. Bachawat  J. expressly said that the appellant "in fact  has waived  the  benefit  of that option."   The  learned  Chief Justice held in view of the option, that "the starting point of  limitation  will be the dates On which  each  instalment became  due." He could have held this only in the view  that the  option  had not been  exercised.  None of  the  parties appears to have contended to the contrary in the High Court. This  being a question of fact it cannot be raised  for  the first  time in this Court.  On such a question of fact,  the High   Court’s  finding  is  binding  on  us.   Furthermore, undoubtedly  if the respondents wished to contend  that  the option  had  been exercised, it was for them to  have  given evidence  of such exercise but they did not do so.  No  such evidence has been brought to our notice from the records  of the  case.  It has, therefore, to be held that the right  to apply for execution in respect of the instalments under  the decree  arose on the dates on which they  respectively  fell due.     The  next  question  as to whether s.  45-0  (1)  has  a retrospective  operation  is of  real  difficulty.   Having. given the matter my  (1) (1887) I.L.R 14 C.I 352, 354. 714 most  anxious consideration, it seems to me that the  better view  would be to hold that it has such an  operation.   The general  rule no doubt is, as was stated by Wright J. in  In re.  Athlumney,(1) "Perhaps no rule of construction is  more firmly established than this--that a retrospective operation

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is not to be given to a statute so as to impair an  existing right  or  obligation, otherwise than as regards  matter  of procedure,  unless  that effect cannot  be  avoided  without doing  violence  to the language of the enactment.   If  the enactment  is expressed in language which is fairly  capable of  either  interpretation,  it ought  to  be  construed  as prospective only." It can no doubt be argued with force that no   violence  will  be done to the language used in  sub-s. (1) of s. 45-O if it is read as applying only to cases where the right to apply has not become barred at the date of  its enactments. But there are other considerations.     Two  reasons have operated on my mind to lead me to  the conclusion  that the general rule should not be  applied  in the present case.  First, it is recognised that the  general rule  is not invariable and that it is a sound principle  in considering whether the intention was that the general  rule should  not  be applied, to "look to the general  scope  and purview  of  the  statute, and at the remedy  sought  to  be applied,  and consider what was the former state of the  law and  what  it was that the Legislature  contemplated.":  see Pardo  v.  Bingharn(2). Again in Cries on Statute  Law,  6th ed., it is stated at p. 395, "If a statute is passed for the purpose of protecting the public against some evil or abuse, it  may be allowed to operate retrospectively,  although  by such  operation it will deprive some person or persons of  a vested  right."   To the same effect is the  observation  in Halsbury’s  Laws of England, 3rd ed., vol. 36 p. 425.   This seems  to  me to be plain commonsense. In  ascertaining  the intention  of  the legislature it is certainly  relevant  to enquire  what  the  Act  aimed  to  achieve..  In  Pardo  v. Bingham(2) a statute which took away the benefit of a longer period  of limitation for a suit provided by an earlier  Act was  held  to have retrospective operation as  otherwise  it would not have any operation for fifty years or more in  the case  of  persons  who  were at  the  time  of  its  passing residing  beyond  the  seas.  It was  thought  that such  an extraordinary  result could  not  have  been   intended.  In R.v.  Vine(3)  the words "Every person convicted  of  felony shall  for  ever  be disqualified from  selling  spirits  by retail  ......  and if any person  shall, after having  been so convicted,  take out or have any licence to  sell spirits by  retail,  the   same shall be void  to  all  intents  and purposes" were applied to a person who had been convicted of felony  before the Act was passed though by doing so  vested rights were affected. Melior J. observed (pp. 200-201).  "It appears to me to be the general object of this statute  that there should be restraints as to the persons who should be  (1) (1898) 2 Q.B.D. 547, 551-552.  (2) (1869) L.R. 4 Oh. A. 735, 740.  (3) (1875) 10 Q.B. 195. 715 qualified to hold licences, not as a punishment, but for the public  good,  upon  the  ground  of  character  ...  A  man convicted before the Act passed is quite as much tainted  as a  man  convicted after; and it appears to me not  only  the possible but the natural interpretation of the section  that any   one   convicted  of  felony  shall   be   ipso   facto disqualified, and the licences, if granted, void."     Now  the object of the present Act is beyond doubt.   It is  well  known that prior to 1949 in our  country  a  large number of mushroom banks had come into existence and were in the  control  of persons not very scrupulous  or  competent. Many banks came to grief and failed with the result that the depositors  largely  lost  their moneys.  It  was  with  the object  of giving relief to these innocent  depositors  that

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the  original  Act  of 1949 and the Acts  amending  it  were passed.  A few of the sections may be referred to by way  of illustration.   Section  43 of the Act provides  that  every depositor  shall be deemed to have proved his claim for  the amount  shown in the books of the bank until the  liquidator showed  reasons for doubting the correctness of  the  entry. Section 43A gives a right to preferential payment upto a sum of Rs. 250/- to such depositors. Indeed in Joseph  Kuruvilla Vellukunnel v. The Reserve Bank of India) it was observed by this  Court at p. 656, "the whole intend (sic.) and  purpose of  that Act is to secure the interests of the  depositors." There need now be no doubt about the object of the Act.  One of the methods by which that object can be achieved  clearly is by extending the period of limitation for the enforcement of  the claims of a bank in liquidation so that  more  money may be collected for payment to the depositors. That is  why s. 45-O and its predecessor s. 45-F had been  enacted.  Both extended  the existing period of limitation  in   regard  to claims  by  a bank against its debtors.  That being  so,  it would  be natural to think that the largest extension  which the language used is capable of giving was intended.  Then I find  no reason why a distinction should have been  intended between  debtors the claims against whom might  have  become barred  before the section was enacted and those the  claims against whom became barred thereafter. The object  would  be better achieved by applying the section to both classes.  I, therefore,  think  that  the  Act was  intended  to  have  a retrospective operation.     The other reason why I think that sub-s. (1) of s.  45-0 has  a retrospective operation is provided by the  terms  of sub-s.  (3) of that section. Retrospective operation  is  of course  a question of the intention of the  legislature  and that  intention has to be gathered from the  whole  statute. The  two  sub-sections  have, therefore,  to  be  considered together: see Barber v. Pigden(1) and Hutchinson v.  Jauncey (3). How sub-s. (3) is in these terms:                   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               (1)  [1962]  Suppl.   3  S.  C.R.  622.    (2)               (1937)IK.B. 664.                 (3) (1950)IK.B. 574. (D)5SCI--7               716               for the winding up has been  presented  before               the  commencement  of  the  Banking  Companies               (Amendment) Act, 1953. It  expressly  makes  sub-s. (1)  applicable  to  a  banking company  being wound up on a petition presented  before  the amending Act. That would indicate that the first sub-section was intended to apply to suits and applications by a banking company  in liquidation even where the winding  up  petition had  been  filed  before  the  amending  Act.   It   should, therefore, apply to all such suits or applications even when they had become barred before the amending Act.  Again it is indubitable  that  as  a result of the  third  subsection  a period  which had started to run before the amending Act  is to  be  excluded  under the first  sub-section.   The  third subsection  gives  no  hint that such  exclusion  is  to  be confined  to  cases where the right had  not  become  barred before that Act.  1t expressly gives the first sub-section a retrospective  operation  by  permitting  exclusion  of   an antecedent period.  All this is strong indication that  sub- s. (1) is to have a retrospective operation.     If  that  is not the intention, then it is clear  to  me

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that  sub-s.  (3)  need not have been  enacted  at  all  for clearly  the first sub-.section would by its own terms  have applied  to  cases  of winding up on  a  petition  presented before  the  amending  Act.   It  applies  to  all   banking companies  being  wound  up and.  therefore,  also  to  such companies  as  are being wound up on  a  petition  presented before that Act.  It could be said that even then the  first sub-section  not  have a retrospective operation  but  would only apply prospectively to a banking company being wound up on  a  petition  presented  before  the  Act.  This  may  be illustrated  by  two cases. In R.v.  St.  Mary,  Whitechapel (Inhabitants)(1)  Lord Denman C.J. said that a  statute  "is not  properly called a retrospective statute because a  part of  the  requisites  for  its  action  is  drawn  from  time antecedent  to  its  passing."  Again  in  Master     Ladies Tailors  Organisation  v. Minister of  Labour  and  National Service(2)  it  was observed, "The fact that  a  prospective benefit is in certain cases to be measured by or depends  on antecedent  facts  does not necessarily   ......   make  the provision retrospective."     Why  then was sub-s. (3) enacted? It must have  been  to give  sub-s. (1) full retrospective  operation, to  make  it affect  vested rights.  If it were not so, sub-s. (3)  would have been a mere surplusage or enacted ex abundanti cautela. A  statute  is  not to be so read  unless  that  reading  is compelled  by the words used. There are no such words and  I do  not  think  that reading is justified  by  the  rule  of presumption  that  a.  statute is not  intended  to  have  a retrospective operation.  In this case particularly  because of  the  clear  intention of the Act to  protect  a  sizable section  of the public consisting of the depositors, I  feel that a reading of sub-s.      (1) (1848) 12 Q.B. 120 at. p. 127. (2) (1950) 2 All. F.R. 525, 527. 717 (3)  as  a  surplusage  or ex  abundanti  cautela  would  be unwarranted.  Furthermore, if that sub-Section  was  enacted merely  ex abundanti cautela, then why did it not  also  say that  the provisions of s. 45-O would apply to a case  where the  winding up order had been made before the Act? Why  was it  not  thought that caution was necessary to  provide  for such  a case also? I am not saying that sub-s. (3) does  not make the section apply to a case where the winding up  order had been made before the amending Act.  All that I am saying is that the omission of a reference to the case of a winding up  under  such an order shows that sub-s. (3)  was  not  ex abundanti  cautela. It must have been intended to give  full retrospective effect to s. 45-0 including sub-s. (1) of that section.     It remains now to deal with the last point.  It is  said that’ since sub-s. (1) allows the period commencing from the date  of the presentation of the petition for winding up  to be excluded in the computation of the period of  limitation, it  can only apply to a case where the period of  limitation had  commenced to run before that date.  The contention  is, unless it did so, the whole of the period cannot be excluded and the section permits exclusion of the whole or none.   It is, therefore, said that even if the first subsection had  a retrospective  operation, it could result in saving the  bar of  limitation only so far as the application concerned  the instalment  which  fell  due on December 30,  1947  for  the petition  for the winding up of the appellant bank had  been presented  on  May  11, 1948 and, hence,  before  the  other instalments  became  due  and the period  of  limitation  in respect of them commenced to run.

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   I  am not inclined to accept this contention.  I see  no reason  why  it should have been intended that  debts  which fell  due before the winding up petition was  presented  but were  not  barred on that date could be  recovered  and  not those which became due thereafter.  It has to be  remembered that   a   liquidator  is  not  always  appointed   on   the presentation of the petition for winding up and It does  not infrequently  happen  that a long time elapses  between  the two.   It  has also to be remembered that  liquidator  would require  quite  some  time  after  his  appointment  to  get acquainted  with  the  state of affairs of  the  company  in liquidation  and start taking steps for the recovery of  its dues.   Therefore, there is no reason to think that  it  was not  intended  to  give the benefit of the  Act  to  a  debt accruing due to a banking company after the presentation  of a  petition for its winding up.  No doubt if sub-s.  (1)  is applied  to  a  case  of  a  debt  accruing  due  after  the presentation  of  the petition for winding up, such  a  debt would  be completely free from the bar of limitation.   But, is there any reason to think that this was not intended?   I find none apart from a rigid and somewhat technical  reading of the words used and this I am unable to accept, as it,  to my  mind, manifestly defeats the object of  the Act. I  here wish  to point out that the bar of limitation is  completely lifted  in  the  case  of a debt  accruing  due  before  the presentation  of the petition for winding up which  had  not become time barred 718 then,  and  it is natural to think that the  intention  must also  have  been to lift the bar completely in the  case  of debts accruing due subsequently. There is no reason to  make a  distinction between the two classes of debts.  I may  add that the complete lifting of the ban of limitation would not produce an astounding result or a great hardship.  It has to be  remembered that the Act is geared up to seeing that  the winding up proceedings are concluded as quickly as possible. To ensure that, large powers have been given to the  Reserve Bank  of  India.   Therefore,  the removal  of  the  bar  of limitation  should  not  keep a debtor in  suspense  for  an inordinately long time. It is true that the sub-section does not  expressly  say that the bar of  limitation  is  totally removed  in  certain cases. That however is  no  reason  for saying  that  it has not that effect.  It clearly  has  that effect  in the case of debts which accrued due prior to  the presentation  of the winding up petition and had not  become barred  on that date, even though the sub-section  does  not expressly say so.  The absence of these words, therefore, is not a reason leading to the view that debts which became due after the presentation of the petition for winding up   were not intended to be protected. In  my  view,  the  first  sub-section  should  be  read  as permitting  the  exclusion of the entire  period  commencing from  the  date  of the presentation  of  the  petition  for winding  up where the debts became due before that date  and in  cases where the debt became due subsequently, such  part of that period as commences from the date of the accrual  of the  debt.   I  think  such a reading  has  the  support  of authority.   In Cortis v. The  Kent  Water-works  Company(1) it  was held that a statute which enabled a rate to be  made upon certain persons and permitted a person against whom the rate  had  been  made to file an appeal  against  the  order making  it  on his entering into a recognizance,  allowed  a corporation  which could not enter into a  recognizance,  to prefer  the appeal without doing so.  It was said  that  any other  reading  of the Act would defeat the  object  of  the

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statute which was to subject corporations to rates.   Bailey J.  observed,  "But assuming that they cannot enter  into  a recognizance,  yet  if  they are persons  capable  of  being aggrieved by and appealing against a rate, I should say that part  of  the clause which gives the appeal applies  to  all persons capable of appealing, and that the other part of the clause  which  requires a recognizance to  be  entered  into applies  only to those persons who are capable  of  entering into  a recognizance, but is inapplicable to those  who  are not." (p. 331).  On the same principle I would hold that the section  permitted the whole of the period  commencing  from the  presentation  of  the petition for  winding  up  to  be excluded  where  it could in fact be so done and a  part  of that  period  only  where  the whole  of  it  could  not  be excluded.  Any other reading would, to my mind,  defeat  the object of the Act and should, therefore, be avoided. (1).7 B.& C. 314. 719     In  the result 1 would allow the appeal, set  aside  the judgment of the appellate bench of the High Court, and  hold that the decree was fully executable.  The appellant will be entitled  to  take  all  steps for  such  execution  as  arc permitted  to it in law.  The appellant will get  the  costs here and below. Wanchoo,  J.   This appeal on a certificate granted  by  the Calcutta   High   Court  raises  a  question   as   to   the interpretation of s. 45-0 of the Banking Companies Act,  No. X  of  1949,  (hereinafter referred to  as  the  Act).   The section  was  enacted  in the present form  by  the  Banking Companies (Amendment) Act, No. LII of 1953. It  is  necessary to state certain facts which  are  not  in dispute  now in order to see how the question  arises.   The appellant-bank (in liquidation) through its Midnapore branch got  a  compromise decree against the respondent on  May  1, 1947,  for the sum of Rs. 31,000/- of which Rs.  2,155  were paid  by the respondent that very day.  The decree  provided that  Rs.  6,885/- were to be paid by May 9,  1947  and  the balance of Rs. 22,000/- in seven instalments as under: --    1. Rs. 1,000/- on May 30, 1947.    2. Rs. 2,000/- on December 30, 1947.    3. Rs. 4,000/- on December 30, 1948.    4. Rs. 4,000/-on December 30, 1949.    5. Rs. 4,000/- on December 30, 1950.    6. Rs. 4,000/- on December 30, 1951.    7. Rs. 3,000/- on December 30, 1952. The  sum  of  Rs. 6,885/- and the first  instalment  of  Rs. 1,000/were  duly  paid, but the respondent did not  pay  the second  instalment due on December 30, 1947, nor did he  pay the  subsequent instalments.  On May 11, 1948, a  winding-up petition   was  presented  in  consequence  of   which   the appellant-bank  was  wound-up by an order  dated  August  3, 1948.  Paragraph 5 of the compromise, which was part of  the decree provided that if the judgment debtor did not pay  any instalment  and  committed default, then four  months  after such  default, all the instalments shall be deemed to be  in default  and the decree-holder would be entitled to  recover the  entire amount of the decree by  execution  proceedings. It  appears  that the appellant  attempted  by  applications presented  in  1948  and 1950 to  execute  decree.   It  is, however,  unnecessary  to  set  out  the  details  of  those proceedings  at this stage.  Suffice it to say that  nothing was  realised in those proceedings and that the  proceedings started  on   the   application   presented  in  1950   were subsequently  transferred to the High Court in view  of  the relevant  provisions of the Act, which had come  into  force

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meanwhile.     On   August  24,  1957,  the  appellant   presented   an application  in tabular form for execution of the decree  on the ordinary original 720 civil  side  of  the Calcutta High Court,  and  the  present appeal has arisen out of the proceedings following  thereon. It  was  stated in the application that the  respondent  had failed  to pay the amount of the decree under execution  and that  the  appellant had been wound up by an  order  of  the court  dated  August 3, 1948 on a  petition  for  winding-up presented  to it on May 11, 1948.  It was  prayed  therefore that the High Court liquidator who was the official receiver of the appellant be appointed receiver without security  and without remuneration to collect and realise amounts  payable to  the  respondent  by the Executive  Engineer,  Works  and Buildings  Department,  Midnapore Division up to  a  maximum limit  of  Rs.  35,000/-. A prayer was  also  made  for  the appointment of an interim receiver and an interim order  for appointment  of  such receiver was made on August 26,  1957, which  order was confirmed on June 2, 1958.  The  respondent thereupon  appealed  and the main question that  was  raised then on its behalf was that the execution of the decree  was barred   by  limitation.  The   appellant  the  other   hand contended that in view of the provisions contained in s. 45- 0  of the Act, the application was within time.  The  appeal court  held  on  an  interpretation  of  s.  45-O  that  the execution was barred by limitation. It is against this order that  the  present appeal has been flied  on  a  certificate granted by the High Court.     The contention of the respondent  was that the execution application  flied in 1957 was a fresh application  and  was clearly barred by time.     The  appellant  met this objection on the basis  of  the provisions of s. 45-O of the Act which reads as under:--                   "(1)   Notwithstanding  anything  to   the               contrary  contained in the  Indian  Limitation               Act,  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 presentation of the petition  for               the winding up of the banking company shall be               excluded.               (2)  .........                   (3)   The  provisions  of  this   section,               insofar  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   the   Banking    Companies               (Amendment) Act, 1953."     I  have  already  mentioned  that  the  application  for winding up the appellant was presented on May 11, 1948.  The winding  up  order was made by the High Court on  August  3, 1948.   The  Act came into force on March   16,   1949.   On March   18,   1950, the Banking Companies  (Amendment)  Act, No. XX  of  1950 721 came into force. On October 24, 1953 the  Banking  Companies (Amendment)   Ordinance  No.  IV  of  1953  was  promulgated and  lastly on December 30, 1953,  the   Banking   Companies (Amendment)   Act.  No.  LII of 1953 came  into force.   The case  of the appellant throughout has been that  the  period

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from May 11, 1948 (when the winding-up petition was made) to August  26, 1957 (when the execution application  was  made) had to be excluded in computing the period of limitation  in view  of  sub-ss. (1) and (3) of s. 45-O of the  Act.   This contention was rejected by the High Court.  It was held that s.  45-O did not have retrospective effect in the  sense  of reviving rights which had become barred on the date it  came into force and in this view an application for execution  of the entire amount was barred by time counting from the first default.  In the alternative it was held that instalments 2, 3 and 4 had become time barred before the coming into  force of s. 45-O on December 30, 1953 and as there was nothing  in s.  45-O  which could revive claims which  had  become  time barred  no execution could be taken out in respect of  them. The High Court further held that s. 45-O could not apply  to instalments 5, 6 and 7 as the cause of action to execute the decree   for   realisation  of  amounts  due   under   those instalments  arose  subsequent  to the  date  on  which  the petition  for winding up was presented and the  language  of sub-s. (1) of s. 45-O indicated that its provisions were  to apply only to cases where the period for the presentation of an application had commenced to run prior to presentation of the  winding-up  application.  The High  Court  consequently held the application for execution to be barred by time.     It  is  well-settled  that provisions  of  an  enactment operate  prospectively. and that the right to sue or  apply, which has become barred by lapse of time under the  previous law,  does  not revive unless the new law, expressly  or  by necessary  implication,  so provides.  The High  Court  held that  there was nothing in s. 45-0 which could lead  to  the conclusion  that its provisions had retrospective effect  in the  sense  that the right to apply which had  become  time- barred on December 30, 1953 when the Amendment Act came into force,  could revive, and consequently enable the  appellant to apply for execution.     The principal question therefore is whether the language of  s.  45-O (1) read with s. 45-O (3) is  retrospective  in operation  and revives claims that might have become  barred by Limitation on the date when that section came into  force i.e.  December  30,  1953.  Now so  far  as  sub-s.  (3)  is concerned,  that provision  is  certainly  retrospective  in the  sense that it applies the provisions of s. 45-O (1)  to all banking companies which were being wound up on  December 30,  1953, and thereafter, even though the  application  for winding  up might have been made before December  30,  1953. The main purpose of sub-s. (3) obviously is to make it clear that  s. 45-O (D applies not only to those cases of  banking companies  where  application for winding up is made  on  or after  December  30,  1953  but  also  to  those  where  the application for winding-up had 722 been made before December 30, 1953 so long as the conditions for  the  application  of s. 45-0 (1)  are  fulfilled.   The effect  of  this on the construction of sub-s. (1)  will  be considered presently.     Section  45-O (1) begins with a non-obstante clause  and prescribes  a  special  manner of computing  the  period  of limitation   in  cases  governed   thereby   notwithstanding anything to the contrary in the Indian Limitation Act, 1908. The first condition that is necessary for the application of s.  45-O O) is that the suit or application should be  by  a banking  company which is being wound up. Thus s.  45-O  (1) will not apply to a banking company which is not being wound up  or where the winding up is over.  It thus applies  to  a banking company between the date of the winding up  petition

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and  the  conclusion of the winding up proceedings  after  a winding up order has been made.  Where a suit or application is  made by a banking company which is being wound  up,  the sub-section  provides for exclusion of a certain  period  in computing the period of limitation prescribed in the  Indian Limitation  Act,  1908.   The  exclusion  is  of  the   time commencing from the date of presentation of the petition for the  winding up of a banking company to the date of suit  or application.  Thus  where a banking company which  is  being wound  up files a suit or makes an application on  or  after December  30,  1953, when s. 45-O (1) came into  force,  the subsection directs that in such circumstances the period  of limitation  shall  be  calculated by  excluding  the  period commencing from the date of presentation of the petition for winding-up  upto  the  date of the filing  of  the  suit  or application.  These words in my opinion are categorical  and lay  down  what  period shall be excluded  when  a  suit  or application  is filed by a banking company. which  is  being wound  up.  I  cannot  agree with the  High  Court  that  in applying  s. 45-O (1) the court has to consider whether  the relief  claimed  in  the suit or application  by  a  banking company  which  is  being  wound up  had  become  barred  by limitation before December 30, 1953. when s. 45-0 came  into force.   The condition necessary for the application  of  s. 45-O (1) is that the suit or application should be filed  by a banking company which is being wound up.  Once it is clear that  the suit or application is filed by a banking  company which  is being wound up, the court must exclude the  period of limitation from the date of presentation of the  petition for  winding  upto  the date of the filing of  the  suit  or application.  In  what manner the exclusion can be made will be considered later.  But these words leave no scope to  the court to consider whether the suit or application, if  filed before  December 30, 1953, would be barred by limitation  or not.   They imperatively lay down that where an  application or suit is flied by a banking company (which is being  wound up)  on  or after December 30, 1953, when s. 45-O  (1)  came into  force,  the court must exclude the  period  commencing from the date of presentation of the petition for winding-up to  the  date of the suit or application  in  computing  the period  of limitation.   Further by virture of  sub-s.  (3), sub-s. (1) applies not only 723 to  those  banking companies which were being  wound  up  on applications  presented  on or after s. 45-O (1)  came  into force,  but  also  to  those  banking  companies  where  the application  for  winding-up was made  before  December  30, 1953,  provided  the banking company was in the  process  of being wound up when the suit or application was filed.   The Act  was  passed for the benefit of depositors and  to  give time  to  liquidators  to familiarise  themselves  with  the affairs of banks.  That is why sub-s. (3) applied sub-s. (1) to  all  banking companies in liquidation  even  though  the petition for winding-up might have been made before the  Act came  into force. It  follows that the legislature  intended to  help  depositors  in  all  banks  in  which  liquidation proceedings  were  not over. Sub-section (3)  would  lose  a large part of its efficacy if sub-s. (1) and sub-s. (3) read together  are not interpreted to provide  for  retrospective operation of the provisions of sub-s. (1). It will be giving full  effect  to  the  intention  of  the  legislature   and advancing  the remedy intended to be given to depositors  if sub-s.   (1)  and  sub-s.  (3)  are  read  together  to   be retrospective in the manner indicated  above.  The  language of  sub-s. (D on its plain reading necessarily implies  that

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it  was  meant  to be  retrospective  and  that   conclusion becomes  inevitable when it is read with sub-s. (3)  in  the background  of the remedy that the legislature  intended  to provide for the benefit of depositors.     It   may  be  mentioned  that  the   Banking   Companies (Amendment) Act, No. XX of 1950, had also provided a special period of limitation by s. 45-F which was in these terms:--                  "45-F.        Special       period       of               limitation--Notwithstanding  anything  to  the               contrary  contained in the  Indian  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 any  suit               or  application  by  a  banking  company,  the               period  of one year immediately preceding  the               date  of the order for the winding up  of  the               banking company shall be excluded." That  provision however only excluded one  year  immediately preceding  the date of the order for the winding-up  of  the banking company.  It seems thereafter the Banking  Companies Liquidation Proceedings Committee 1952 was appointed and had recommended that "provisions may be made by the  legislature to  the effect that limitation will stop running  against  a banking  company  from the date of  the  winding-up  order." This  recommendation  appears to be the basis  of  s.  45-0. Even so the words of s. 45-O have to be interpreted as  they stand  whatever  may  have been the  recommendation  of  the committee  and on a plain construction of those words it  is quite clear that sub-s. (1) of s. 45-0 provides in the  case of a suit or application filed by a banking company which     is  being wound up that the period commencing  from  the date  of presentation of the petition for winding-up of  the banking company 724     to  the date of suit or application shall  be  excluded. It   will  however  be  seen  that  though   the   committee recommended  that limitation should stop running  against  a banking  company from the date of the winding-up order,  the legislature  made two changes when it proceeded to enact  s. 45-O (1) of the Act.  In the first place it did not  provide for  stopping of the running of limitation; it provided  for exclusion  of  a certain period.  It  further  provided  for exclusion of the period commencing from the presentation  of a  winding-up petition and not from the winding-up order  as recommended  by   the  committee.  Now  exclusion  has  been provided in ss. 12 to 16 of the Limitation Act also.  It  is well settled that exclusion of time cannot take place  where time  has  not begun to run before the date from  which  the exclusion  begins  or the time limited has  already  expired before  such  date.   There  can  thus  be  no  question  of exclusion  where  the time has not begun to run and  is  not continuing  to run.  Therefore, though the  committee  might have  recommended that limitation should stop  running  from the  date of the winding-up order, the  legislature  adopted the well-known  device of exclusion in order to help banking companies  in realising their dues.  I may add that  in  the earlier  provision in Act XX of 1950 also.  the  legislature had  only  provided for exclusion and the  same  device  was continued  when s. 45-O (1) was introduced by the  Amendment Act   of  1953.   It  is  therefore  clear  that  when   the legislature enacted s. 45-O (1) it made two changes  already indicated  in the recommendation of the committee and  those changes are clear from the words of s. 45-O.  Therefore,  in order  that  s.  45-O  (1) should  apply,  it  is  necessary firstly that the banking company should be in the process of

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being wound up when the suit or application is being  filed, and  secondly that the period of limitation for the suit  or application should have begun to run before the date of  the winding-up petition but should not have run out before  such date.   Otherwise there can be no question of excluding  the period  beginning  from  the date  of  presentation  of  the petition for winding-Up of the banking company.  Further  in view of sub-s. (3) of s. 45-O, sub-s. (1) thereof will apply to all  banking  companies which are in the process of being wound  up,  even  if the petition for  winding-up  was  made before s. 45-0 (1) came into force and even if the  winding- up  order was made in such case whether before or after  the date on which s. 45-O (1) came into force i.e. December  30, 1953.     It  is however urged that on this  interpretation  there may  be  some  anomalies,  particularly  in  the  cases   of instalment  decrees. For example, it is said that  where  an instalment  decree provides for six yearly  instalments  and does  not provide for any default clause it may happen  that some instalments may become due and may not be paid before a winding-up  petition while other instalments may become  due after  the  winding-up petition. In such  a  situation,  the instalments  which became due and were not paid  before  the winding-up petition may be recoverable by execution 725 under s. 45-0 (1) for the period of limitation having  begun and not having run out the exclusion provided by s. 45-O (1) comes  into  play, while in the case of  instalments,  which became   due  after  the  presentation  of  the   winding-up petition,   the  period  of  limitation  not  having   begun exclusion  could  not come into play.  It is  said  that  it would be rather anomalous that earlier instalments should be recoverable but not later ones.  It is submitted that if the subsection is interpreted to lay down stoppage of the period of  limitation  after  the presentation  of  the  winding-up petition  it will equally cover all instalments.  It may  be accepted   that   there  would  be  this  anomaly   on   the interpretation  which I have accepted.  But the language  is clear  and provides for exclusion which can only take  place after  the period of limitation has begun and before it  has run out.  Therefore, whatever the anomaly where the language is  clear  and  unambiguous  it  has  to  receive  the  only construction of which it is capable.  As against this I  may point out that if the language of s. 45-O (1) is interpreted as   stopping   of  limitation  in  all  cases   after   the presentation  of the winding-up petition it will  result  in equal  anomalies.   Take a case where a liquidator  files  a suit  and  gets  a  decree.  Was it  the  intention  of  the legislature  by this provision to lay down that there  would be  no  limitation in such a case for the execution  of  the decree?  That would be the result if the provision in s. 45- 0  (1) is interpreted as meaning stoppage of all  limitation from  the  date of the presentation of winding-up  petition. But it could hardly be the intention of the legislature that the liquidator in such a case should not execute the  decree which  he gets within the period of limitation  provided  by the  Indian  Limitation  Act.   The  reason  for   exclusion provided in s. 45-0 (1) appears to be that after a  winding- up  order the liquidator takes charge and he will  naturally take  time  to familiarise himself with the affairs  of  the company.  So in all cases where time has begun to run before the  winding-up  petition  and  has  not     run  out,   the liquidator  should get some breathing space and that is  why the  period  from  the date of the  winding-up  petition  is excluded.   But where the time has not begun to  run  before

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the windings petition, the liquidator would have ample  time within which to know the true state of affairs and in such a case the legislature did not intend that there should be  no limitation  as provided in the Indian Limitation Act.   That is  why one finds the language of exclusion in s. 45-O  (1). The benefit of that provision is meant for cases where  time has begun to run but has not run out before the presentation of the winding-up petition; it is not meant to provide  that there  would  be no limitation in all  cases  where  banking companies are in the process of liquidation.  In any case if the  legislature wanted to make such a sweeping provision  I should  have found appropriate language for that purpose  in s.  45-O (1).  In the absence of such appropriate  language, the  provisions of s. 45-O (D which appear to be  clear  and unambiguous,  must  receive their only  proper  construction already set out above. 726     Let  me  now see how this construction  applies  to  the facts of the present case.  The present case is governed  by s.  45-O (3) because the winding-up petition  was  presented before s. 45-O (1) came into force, but by virtue of  sub-s. (3) of s. 45-O, sub-s. (1) would apply to the present  case. The  question  then is whether limitation had begun  to  run before  May 11, 1948 on which date the  winding-up  petition was  presented  and if so for which instalments or  for  the whole of the amount.  If limitation had begun to run  before May  11, 1948. the period from May 11, 1948 upto the date of the application for execution on August 26, 1957, would have to  be excluded. Now the evidence is that there was  default in  payment of the instalment due on December 30. 1947.   So the period of limitation for that instalment certainly began to   run  from  that  date.  Further  paragraph  5  of   the compromise  to which I have already referred lays down  that if payment was not made of any instalment within after  four months of the due date, the entire remaining decretal amount would  also become due.  These four months expired on  April 30,  1948  and  from  May 1, 1948  the  appellant  bank  was entitled to execute the entire decretal amount that remained due.   Therefore  the  right to execute  all  the  remaining instalments arose on May 1, 1948.  Thus  limitation for  all the instalments from second to seventh began on May 1,  1948 while  the  application for winding up was made on  May  11, 1948.  In view of the interpretation of s. 45-0 (1) which  I have accepted, the appellant would be entitled to  exclusion of the entire period from May 11, 1948 upto the 6ate of  the execution   application,  and  would  thus  be  entitled  to execute  the  decree for Rs. 12,000/which is  the  total  of instalments 2 to 7 with interest.     But  it  is said that the appellant cannot  execute  the whole  decree  as it had waived the first default.   I  have already  indicated  that the High Court had  considered  the matter  both from the point of view of the whole amount  and of each instalment. No question of waiver was raised by  the respondent  in his objection-petition. On the other hand  it seems  to  have  been  urged  before  the  High  Court  that limitation started from the first default i.e., May 1,  1948 and  so there was no question of considering the  matter  of later  instalments at all.  This was negatived by  the  High Court  on  the authority of Ranglal Aggarwalla  v.  Shyrnlal Tamuli(1)  and that is how the High Court came  to  consider the question of instalments in the alternative.     Besides it appears that two execution applications  were made  in  this case one in February 1948 and the  other  in. July 1950. When the first execution application was made the default clause had not come into operation and the appellant

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only  wanted  execution  of the  second  instalment  of  Rs. 2,000/-  and  prayed  for  attachment    for  Rs.   2,030/-, including  interest. So there could be no waiver then.   The second execution application was made not only after (1) (1945-46) 50 C.W.N. 735. 727 the  first default but after two other defaults also of  the instalments of Rs. 4,000/- each due on December 30, 1948 and December  30,  1949.  The total  of  instalments   then   in default   was   only  Rs. 10,000/-.  Though a  copy  of  the second  execution application is not printed in the  record, it is clear from the particulars in the present tabular form filed in 1957 that the relief sought at the second execution was by  attachment for Rs. 26,070/-.  Clearly therefore  the appellant  was executing the whole decree after the  default and there can be no question of waiver in the circumstances: (see  also the appellant’s statement of case paragraph  20). Bachawat J. (as he then was) who delivered a short  separate judgment has certainly said that the present appellant could waive and had in fact waived the benefit of the default. But that  with  respect does not appear to be  accurate.   I  am therefore  of opinion that there was no waiver of the  first default  and so the appellant can take advantage of s.  45-0 and execute the decree for the entire amount.     I  would  therefore allow the appeal and set  aside  the order  of  the High Court, and order that  execution  should proceed according to law.  The appellant will get its  costs incurred  before  the appeal court and this court  from  the respondent.  The remaining costs will abide the result.     Raghubar  Dayal, J. This appeal, by  certificate   under art.   133(1)(a)   of   the   Constitution,   requires   the construction  of s. 45-0 of the Banking Companies Act,  1949 (Act  X of 1949), hereinafter called the Act.  This  section was  enacted  in its present form by the  Banking  Companies (Amendment) Act, 1953 (Act LII of 1953). hereinafter  called the Amending Act.     The question arises on these facts.  The appellant bank, through  its Midnapore Branch, obtained a compromise  decree against  the respondent in O.S. No. 25 of 1947 of the  First Court of the Subordinate  Judge,  Midnapore, on May 1, 1947. The  decree was for an amount of Rs. 31,000/- of  which  Rs. 2,115/were paid by the respondent that very day. The  decree provided that Rs. 6,885/- were to be paid by May 9, 1947 and the balance of Rs. 22,000/- in seven instalments as under:     1. Rs. 1,000/- on May 30, 1947.     2. Rs. 2,000/- on December 30, 1947.     3. Rs. 4,000/- on December 30, 1948.     4. Rs. 4,000/- on December 30, 1949     5. Rs. 4,000/- on December 30, 1950.     6. Rs. 4,000/- on December 30, 1951.     7. Rs. 3,000/- on December 30, 1952. The  judgment-debtor respondent did not pay the  second  and subsequent  instalments.   Paragraph 5   of  the  compromise which  formed  part  of  the decree  provided  that  if  the plaintiff decree-holder 728 did  not  get  the  amount  due to  it  on  account  of  the instalments within 4 months from the time of default, it was to deem, on the expiry of the said 4 months, all the   other instalments  to   be  in default and would  be  entitled  to realise  the  entire amount of the decree then  due  through execution proceedings.     The  appellant attempted, by applications  presented  in 1948  and  in  1950,  to execute  the  decree.  The  details relating  to these applications and the proceedings  thereon

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need not be set out here as they do not affect the  question for  consideration.  Suffice  it to  say  that  nothing  was realised  in  these  proceedings and  that  the  proceedings started   on  the  application  presented  in   1950    were subsequently  transferred to the High Court in view  of  the relevant provisions of the Act.     On   August  24,  1957,  the  appellant   presented   an application in a Tabular form for execution of the   decree, on  the  ordinary original civil side of the  Calcutta  High Court.  It was stated in column 10 meant for noting the mode in  which the assistance of the Court was required that  the defendant  judgment debtor had failed to pay any portion  of the decretal amount or interest, that the decree-holder Bank was  wound up by an order of the Court dated August 3,  1948 on a petition for winding-up presented to it on May 11, 1948 and that the Court Liquidator, High Court, and the  Official Liquidator of the decree-holder Bank, be appointed  receiver without  security and without remuneration, to  collect  and realise  the  amount payable to the  defendant  firm  and/or Sukumar  Dutta.  one  of  its  partners,  by  the  Executive Engineer,  Works & Building Department,  Midnapur  Division, upto  a maximum limit of Rs. 35,000/-.  A   further   prayer was made that an interim receiver be appointed before  issue of any notice of the application to the judgment debtor.  On this  application an interim order for the appointment of  a receiver  was  made  on  August 26,  1957.  This  order  was confirmed  on June 2, 1958. The  judgment-debtor  respondent appealed against this order contending that the execution of the  decree  was  barred by limitation.   The   High   Court agreed with the contention and dismissed the application and also  set aside the order for appointment of  receiver.   It is  against  this order that this appeal has been  presented under a certificate from the High Court.     The  contention  for  the judgment-debtor  is  that  the execution to realise intsalments number 2 to 7 had   expired long  before August 24, 1957 when the execution  application in  tabular  form  had been presented as the  date  for  the payment  of the last instalment was December 30,  1952.  The period  of  4 months after the expiry of December  30,  1952 within  which  the decree-holder could  execute  the  decree expired  on  May  1, 1953.  The  execution  application  was presented after the expiry of 3 years of this date. This 729 objection on the ground of limitation was met by the decree- holder Bank on the basis of the provisions of s. 45-O of the Act which reads:                 "(1)   Notwithstanding   anything   to   the               contrary  contained in the  Indian  Limitation               Act,  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 presentation of the petition for  the               winding  up  of the banking company  shall  be               excluded.               (2)  Notwithstanding anything to the  contrary               contained  in the Indian Limitation Act,  1908               or  section 543 of the Companies Act, 1956  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

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             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  limitation 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,  whichever  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   the   Banking   Companies.               (Amendment) Act, 1953."     To appreciate the contention based on this section it is necessary  to mention a few more facts.  On May 11, 1948,  a petition  for  winding-up by the Bank  was  presented.   The winding-up  order  was made by the High Court on  August  3, 1948.  The Act came into force on March 16, 1949.  On  March 18,  1950, the Banking Companies (Amendment) Act, 1950  (Act XX  of  1950)  came into force.  On October  24,  1953,  the Banking  Companies (Amendment) Ordinance  IV of   1953   was promulgated  and lastly, on December 30. 1953, the  Amending Act  came  into  force.  The contention  for  the  appellant before  the High Court and in this Court is that the  period between May 11, 1948 when the windings application was filed and    August  1957  when  the  execution  application   was presented,  is  to be excluded from the computation  of  the period  of limitation, in view of sub-ss. (I) and (3) of  s. 45-O  of the Act.  This contention was rejected by the  High Court  on  the ground that instalments Nos. 2, 3 and  4  had become  time barred before the coming into force of s.  45-O on December 30, 730 1953  and that there was nothing in s. 45-0 to  revive   the claims which could not be enforced due to the lapse of  time under  the provisions of the Limitation Act.   Section  45-0 was not held to apply to the case of instalments 5, 6 and  7 as  the  cause  of  action to execute  the  decree  for  the realisation of the amounts due under these instalments arose subsequent to the date on which the petition for  winding-up was  presented  and the language of sub-s. (1)  of  s.  45-O indicated  that its provisions were to apply only  in  cases where the period for the presentation of an application  had commenced to run prior to the presentation of the winding-up application.   The  High  Court,   consequently,  held   the application for execution to be barred by time and dismissed it.     The  contentions  urged  before the High  Court  by  the respective parties have been repeated before us.  It is thus that the question of the construction of s. 45-O of the  Act has arisen.     It is no doubt true that the provisions of an  enactment operate  prospectively and that the consensus of opinion  is that  unless  they  expressly or  by  necessary  implication provide  otherwise.  the  right to sue or  apply  which  had become barred by lapse of time under a previous enactment is not revived by the succeeding enactment. The High Court  was of opinion that there is nothing in s. 45-0 which could lead to  the  conclusion that its  provisions  had  retrospective effect in the sense that the right to apply which had become time-barred on December 30, 1953, when the Amending Act came into force, could revive and consequently enable the Banking Company to apply for that relief.  Lahiri, C.J. said:

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                 "On  this point it is significant to  note               that  sub-section 3 of section 45-O makes  the               provisions of the section applicable only to a               banking company in respect of which a petition               for  winding-up has been presented before  the               commencement   of   the   Banking    Companies               (Amendment) Act of 1953; but does not make the               provisions of the section applicable to  debts               due  to the banking company which  had  become               barred  by  lapse of time before the  date  of               such  commencement.  Then again sub-section  1               of  section  45-0  provides  that  the  period               commencing  from the date of the  presentation               of the petition for winding-up of the  banking               company  shall  be excluded and does  not  say               that  this  period shall always be  deemed  to               have  been  excluded.  The use of  the  future               tense  in sub-section (1) indicates  that  the               Legislature  did not intend its provisions  to               operate  on decrees which had before the  date               of  its commencement become  unenforceable  by               lapse of time.  There is therefore neither any               express word nor any necessary implication  in               section  45-0 to indicate that its  provisions               were  intended  by  the  Legislature  to  have               retrospective effect."               731               Bachawat  J., practically took the  same  view               and  said that sub-s. (1) of s. 45-0  did  not               provide  that  the  period from  the  date  of               presentation of the petition for winding-up of               the banking company would be always deemed  to               have been excluded and that though sub-s.  (3)               of   s.  45-O  specially  provided   for   the               retrospective application of the section to  a               banking  company the Legislature  deliberately               had  not provided that sub-s. (1) of  s.  45-O               would have a larger retrospective operation.                   I  am  of  opinion  that  sub-s.  (1)--and               specially  when  read with  sub-s.  (3)of   s.               45--0.)  operates  retrospectively   and  that               the  appellant’s  application  for   execution               presented  to  the  High  Court  in  1957  for               executing  the decree for the  realisation  of               the  instalments in the payment of  which  the               respondent   judgment-debtor made default  was               maintainable and not barred by time.                   It is not necessary for the  retrospective               operation  of the provision of an Act that  it               must  be stated that its provisions  would  be               deemed  to have always existed.  That  is  one               mode and may be an effective mode of providing               that  the provisions would have  retrospective               effect.  Retrospective effect of an  enactment               can also be gathered from its language and the               object  and  intent  of  the  legislature   in               enacting it.                   In  The  Queen v.  Vine(1)  an   enactment               which  was penal  in nature was  construed  to               have  retrospective  effect despite  the  rule               that  when an enactment is penal in nature  it               is not to be construed retrospectively if  the               language  is capable of having  a  prospective               effect  given to it and is not  retrospective,               as  the  object of the’ enactment was  not  to

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             punish  offenders  but to protect  the  public               against  public-houses in which  spirits  were               retailed  being  kept by persons  of  doubtful               character.                   Government   had  been  making  laws   for               exercising  control over the Banks since  1936               upto  which time the Indian Companies Act,  19               13, governed the working of Banking  Companies               as well.  In that year, Part 10A was added  to               the Indian Companies Act. Amendments were made               to this Part subsequently and, ultimately,  it               was  repealed  by the Banking  Companies  Act,               1949.   In this Act too, Part 3A was added  by               the Amending Act of 1950.  The Amending Act of               1953  substituted the present Part 3A  in  the               Act  for  the Part  originally  introduced  in               1950.                   Section 45-F which was inserted in the Act               by the Amending Act of 1950 may be quoted,  as               some   reference   to   it   would   be   made               subsequently.  It reads:                  "45F.        Special       period        of               limitation--Notwithstanding  anything  to  the               contrary  contained in the  Indian  Limitation               Act,  1908 (IX of 1908), or in any  other  law               for                     (1) L.R. 10 Q.B. 195.               (D)5SCI-- 8               732               the  time  being in force,  in  computing  the               period  of limitation prescribed for any  suit               or  application  by  a  banking  company,  the               period  of one year immediately preceding  the               date  of the order for the winding-up  of  the               banking company shall be excluded." A  scrutiny of the provisions of the Act and  especially  of Part 3A clearly indicates that the object of the Legislature in  enacting these measures was to protect the interests  of the  depositors  of  the banking  company  and  to  expedite winding-up proceedings.  We need not refer to the provisions which would indicate such a purpose of the Legislature.  The expeditious   disposal   of  the winding-up  proceedings  is clear    by  the  provisions by s. 40  which  provides  that notwithstanding  anything to  the  contrary contained in  s. 466  of  the Companies Act, 1956, the High Court  shall  not make  any order staying the proceedings in relation  to  the winding-up  of a banking company, unless the High  Court  is satisfied  that  an arrangement has been  made  whereby  the company  can  pay  its depositors in full  as  their  claims accrue.     In  Joseph  Kuruvila  Vellukunnel v.  The  Reserve  Bank India(1), it was observed:                  "An  examination of the  Banking  Companies               Act  reveals  two  things  prominently.    The               first is that the whole intent and purpose  of               that  Act  is to secure the interests  of  the               depositors..."     It can be presumed that companies which are wound-up had been usually mismanaged.  Mismanagement can also account for the  failure of the banking company to sue the  debtors  for the  recovery  of  the amounts due to  the  banking  company within  limitation.   This  injures  the  interests  of  the depositors and others concerned in the proper running of the banking   company.   It  is  again  within  the   range   of possibility, nay probability, that the liquidator  appointed

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for  the banking company when it is ordered to be  wound  up would require some substantial time to acquaint himself with the  complete position about the affairs of the company  and that during such period limitation for instituting suits  or making applications in the interests of the banking  company may expire.  This aspect is fully explained in paragraph  57 of   the  Report  of  the  Banking   Companies   Liquidation Proceedings Committee, 1952, which is set out below:                  "The  Committee  has  also  considered  the               question  as to whether the law of  limitation               should  be  further relaxed in favour  of  the               Liquidator.   The Liquidator has already  been               granted a year’s grace by Section 45F of the:               (1) [1962] Supp. 3 S.C.R. 632, 656.               733               Banking Companies Act.  Most of-the  witnesses               examined  by  us  were  of  opinion  that  the               Liquidator’s  year was inadequate. They  urged               that  in many cases it takes the Liquidator  a               long time to ascertain who the debtors are and               the amounts due from  them, particularly where               the records are distributed in different parts               of   India  or  are  incomplete.   Under   the               procedure envisaged above the debtor is liable               to be arraigned in the winding-up proceedings,               and  is  entitled  to  claim  relief  in  such               proceedings.   As  regards  creditors,  it  is               settled law that ’the Limitation Act ceases to               run  as  from the winding-up order so  that  a               creditor  whose claim is not then barred  will               not be barred by subsequent delay’. We see  no               reason why limitation should not cease to  run               against  the banking company from the date  of               the   winding-up  order.   If  the   procedure               envisaged above is adopted, the necessity  for               the  Liquidator  to  file  suits  against  the               debtors   of  the  bank  will  rarely   arise.               Further,  the Liquidator shall have  no  scope               for unconscionable delay in proceeding against               the  debtor.   He  is required  to  bring  the               debtor  before the Court within 6 months  from               the  date  of  the  winding-up  order   unless               further  time  is granted by the   Court.   We               therefore recommend that provision may be made               by   the  Legislature  to  the   effect   that               limitation will stop running against a banking               company  from  the  date  of  the   winding-up               order." It appears that the Legislature mostly accepted this view of the  Committee  and enacted s. 45-O  providing  mainly  that there would be no running of limitation against the  banking company subsequent to the date of the petition for  winding- up with the result that limitation would run in the ordinary course  upto the winding-up petition.  There is  much  logic behind  it.   Non-action upto the date of the  petition  for winding--up  was  on  account of the  mismanagement  of  the banking  company.   The debtor of the banking  company  gets advantage  of  the negligence of the company to sue  him  or apply  against him within the period of  limitation.   Since the  presentation  of  the petition for  winding-up  of  the company,  the  Court gets control over the  affairs  of  the company  and  supervises  the acts  of  the  liquidator,  in accordance  with the provisions of the Act which, to  secure necessary  action in all matters within a  reasonable  time, provide  certain periods for certain actions to be taken  by

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the liquidator of the Court.  It is to be presumed therefore that  any delay in the taking up of any legal action by  the Banking Company would be for good reasons.  The  Legislature seems to have been of the opinion that the interests of  the banking companies, especially of its depositors, should  not suffer  on account of the delay which could not  be  avoided even  when  the Court was in charge of the  affairs  of  the banking company.  Viewed in this 734 perspective,  it  should appear that the relevant  date  for considering  whether  action  can be taken  by  the  banking company  by suit or application is the date of  presentation of  the  winding-up petition. If the banking company  had  a right  to  sue  or to apply on the  date  the  petition  for winding-up  was presented, that right should not be lost  to it. I  may  now consider how far the  legislature  succeeded  in making  s. 45-0 of the Act, specially its  sub-sections  (1) and   (3)  carry  out this object and  intention.   For  the application  of  sub-s. (1), two things are  necessary:  (i) that  a  company is being wound-up and (ii) that a  suit  is instituted  or  an  application is made by  such  a  banking company.   If these two things exist, the period  commencing from the date of presentation of the petition for winding up is to be excluded in computing the limitation prescribed for such a suit or application.     The first condition would be satisfied by all  companies with respect to which winding-up orders had been made either before  the  commencement  of the Amending Act  of  1953  or thereafter.  There  is nothing in the language of  the  sub- section to limit the expression companies being wound up’ to those companies with respect to which winding-up orders  are made  subsequent to December 30, 1953. There seems to be  no good  reason  why such a limitation on  this  expression  be imposed.  The  provision  is not for  the  benefit  of  such companies  only but is for the benefit of all the  companies which  would  be  in the process of  winding-up  during  the enforcement  of the Act.  The process might  have  commenced before  or  after the enforcement of  the  Act.   Naturally, petitions  for the winding-up of companies with  respect  to which winding-up orders had been made prior to December  30, 1953, must have been made before that date.  The language of sub-s.  (1)  plainly applies to companies which  were  being wound  up  when  the Act came into force.  I  may  refer  to certain  cases in which expressions of general  import  have been so construed. In   Weldon   v.  Winslow(1)  the  provision  of   law   for construction was:               "a married woman shall be capable  ......   of               suing and being sued either in contract or  in               tort, or otherwise, in all respects as if  she               were  a feme sole, and her husband   need  not               be joined with her as plaintiff or  defendant,               or  be  made a party to any  action  or  other               legal proceeding brought by or taken   against               her, and any damages or costs recovered by her               in any such action or proceeding shall be  her               separate property  ......  " Brett,  M.R. said at p. 787 that the section dealt  with  an action for tort and that after the Act came into operation a married woman (1) I.R.13 Q.B.D. 784. 735 might  bring such an action in her own name and the  damages and  costs  recovered shall be her  separate  property.   He

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continued:                  "It  is said that this is  a  retrospective               construction,  because  the  cause  of  action               arose before the statute came into  operation;               but  the section does not say  anything  about               cause  of action; it deals with  bringing  the               action.  and there is nothing in it  to  limit               its  provisions  to causes of  action  arising               after  the  statute  came  into  operation.  I               think, therefore, that an action brought after               the statute came into operation is within  the               plain  words of s. 1, and it is  necessary  to               distort  the grammatical meaning of the  words               to  arrive at the interpretation  proposed  by               the defendant’s counsel."               These   remarks   can  apply  aptly   to   the               construction  of sub-s. (1) of s. 45-O.   That               sub-section  deals  with  the  computation  of               limitation   with   respect   to   suits   and               applications filed after the coming into force               of  the Amending Act of 1953 and do not  apply               to suits and applications which had been filed               earlier.  The provisions say nothing about the               time  when  the  petition  for  winding-up  be               presented.   There  is nothing  to  limit  the               provisions  to petitions for winding-up  which               had been presented after the Amending Act came               into force.                   In  Bank  of Athens  Societe   Anonyme  v.               Royal  Exchange  Assurance(1)  an  application               under  sub-s.  (1) of s. 3 of the  Law  Reform               (Miscellaneous    Provisions)    Act,    1934,               empowering the Court to award interest on  the               whole  or any part of the debt or damages  for               the  whole or any part of the  period  between               the  date when the cause of action  arose  and               the date of the judgment, was construed not to               be  restricted to proceedings taken after  the               Act  had  come  into force.  It  was  said  by               Branson J., at p. 773:               "I think that on the true construction of that               section the               court  in any proceeding, whenever  commenced,               whether  before  or  after the  Act,  has  the               discretion  which the section gives  it.   The               words  as  they stand are applicable  in  that               sense."                   The  construction I put on the  provisions               of sub-s. (1) gets support from the provisions               of sub-s. (3).  It is to be noticed that  sub-               s. (3) does not provide that the provisions of               sub-s.  (1) would apply to  banking  companies               with  respect to which winding-up  orders  had               been  made  prior to the commencement  of  the               Amending Act of 1953.  If it had said so,  the               question we are considering now would not have               arisen  as  that  would  expressly  apply  the               provisions  of  sub-s. (1)  to  the  companies               which  were  being wound-up  on  December  30,               1953.  Sub-s. (3) provides that the provisions               of the section, viz., of sub-ss. (1) and  (2),               shall  also apply in so far as they relate  to               banking companies being wound-up to a banking               (1) L.R. [1938] 1 K.B. 771.               736

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             company  in  respect of which a  petition  for               winding-up  has  been  presented  before   the               commencement  of the Amending Act. Sub-s.  (3)               contemplates cases in which the petitions  for               winding-up   had  been  made  prior   to   the               enforcement  of the Act but no orders for  the               winding-up  of the company had been made.   If               the provisions of sub-s. (1) can apply to  the               companies   with respect to which  proceedings               on  a  winding-up  petition  were  pending  on               December 30, 1953, it would be very  anomalous               if they would not apply to the companies  with               respect  to which winding-up orders  had  been               made  prior to December 30, 1953.  This  leads               to  the inference that sub,S. (1) by  its  own               language  applies to banking  companies  which               were being wound-up on December 30, 1953.                   Further,  this  would be  apparent  if  we               combine the provisions of sub-ss. (1) and  (3)               together, which could be read thus:                   "Notwithstanding.. in force, in  computing               the period of limitation prescribed for a suit               or  application by a banking company which  is               being  wound  up,  or in respect  of  which  a               petition   for   the   winding-up   has   been               presented  before  the  commencement  of   the               Banking " Companies (Amendment) Act, 1953, the               period   commencing  from  the  date  of   the               presentation of the petition for winding-up of               the banking company shall be excluded." So read, it becomes clear that the period of exclusion would be  available in connection with suits or applications by  a banking  company which is being wound-up or with respect  to which  a  petition  for winding-up has been  made  prior  to December 30, 1953.     I   am   further  of  opinion  that  if   a   restricted construction be placed on the provisions of sub-s. (1) of s. 45-O,  the effect of sub-s. (3) would be very much  reduced. In fact, it will probably have no utility.  If the cause  of action  for  a suit or application had lapsed by  efflux  of time  prior  to or on December 30,  1953, the  advantage  of sub-s.  (1) will not be available to the banking company  on account of the provisions of sub-s. (3).  Sub-s. (3)  itself does  not give any particular right to the banking  company. It  only provides that whatever advantage a banking  company can  derive  from the provisions of sub-s. (1)  when  it  is being  wound-up, would be available to it even if it be  not being  wound-up, if a petition for its winding-up  had  been presented  prior to the enforcement of the Amending  Act  of 1953.   The only case in which the banking company can  take advantage  of  sub-s. (3) then would be when  the  cause  of action  for  the  suit  or application  has  not  lapsed  by December  30,  1953  and the  proceedings  on  a  winding-up application were pending on that date.  Such cases would  be covered by the language of sub-s. (1) if the cause of action was alive on December 30, 1953.  The order for the  winding- up  of the company would be made subsequent to the date  and therefore suits or 737 applications  covered by sub-s. (1) would get the  advantage of  the provisions of that Act.  The expression ’the  period commencing from the date of the presentation of the petition for the winding-up of the banking company shall be excluded’ fixes the point of time from which the excluded period  will commence,  and  cannot  be  limited to  the  dates  of  such

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petitions which be presented after December 30, 1953.     It  is  true,  as stated in  Jwala  Prasad  v.  Official Liquidator(1), that the only purpose which sub-s. (3) of  s. 45-0  serves is to make it clear that sub-s. (1) will  apply even  when the petition for the winding-up of a  company  is presented  prior to the commencement of the Amending Act  of 1953. I do not think that a separate subsection was  enacted merely   for  the  clarification  of  the  point  that   the provisions of sub-s. (1) of s. 45-O would take in such cases firstly because such cases would be covered by the  language of sub-s. (1) and, if not, it could have been stated in sub- s.  (1) itself that those provisions would apply  where  the petition  for winding up was presented before or  after  the commencement  of  the Act by simply  adding  the  expression ’presented  before  or after the commencement  of  the  Act’ between the words ’banking company’ and ’shall be excluded’.     I am therefore of the view that the effect of sub-s. (1) of  s.  45-0  is that if suits or  applications  made  by  a ,banking  company  which  is being  wound-up  or  for  whose winding-up  a petition has been presented prior to  December 30,  1953, the period of limitation is arrested on the  date of  the presentation of the petition for winding-up  of  the company  and that it is not material whether such a date  is earlier  than December 30, 1953, or not and  that  therefore suits can be instituted and applications made even in regard to matters with respect to which such action could be  taken on the date of presentation of the application for  winding- up  of  the company but could not be taken on the  date  the Amending Act of 1953 came into force.     I may now refer to the case law on the point which is so far quite meagre.     In  Punjab  Commerce Bank v. Brij Lal(2)  the  suit  was filed  on  March  31,  1952 under s.  45-B  of  the  Banking Companies  Act,  1949, as amended by Act XX  of  1950.   The cause  of action arose on October 9, 1946.  The  application for  winding-up  was  made  on February  17,  1948  and  the winding-up order was made on October 11, 1952.  The suit was dismissed  on  December  2, 1952 as barred by  time  and  an appeal  against the dismissal was pending in the High  Court on December 30, 1953 when the Amending Act of 1953 came into force.  The suit was certainly time-barred as the law   (1) A.I.R. 1962 All. 486. (2) A.I.R, 1955 Punj, 45. 738 stood on the date of its institution.  It was urged for  the appellant that the Amending Act was retrospective in effect, that it applied to all suits which were pending on the  date it came into force and as the appeal was a re-hearing of the case the suit would still be within time as the Amending Act would be applicable to the case on the date of its decision. This  contention was repelled. Bishan Narain J., said at  p. 46:                  "I have carefully read this section and  in               my  opinion section 45-0 is not  retrospective               in   effect   expressly   or   by    necessary               implication  and further there is  nothing  in               this section so retrospective in effect as  to               revive  a  claim which before  that  date  had               become unenforceable by lapse of time."               These  observations apparently go against  the               appellant.    They  were,  however,  made   in               connection  with  the provisions  of  s.  45-O               applying  to  a suit pending on the  date  the               Amending Act came into force and their  import               is limited by the other observations made when               dealing with the provisions of s. 45-O.  These

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             observations, on pp. 46 and 47, are:                   "It will be noticed that neither sub-s. (D               nor sub-s. (3) makes any mention of a  pending               suit at the time when the Amending Act of 1953               came into force although the legislature  does               provide   under   s.   45-C   provisions   for               transferring  such a suit to the High   Court.               In  the  absence of any  specific  mention  of               pending suits it not possible to hold that the               section  would apply to them. Sub-section  (3)               is to a certain extent retrospective in effect               because  it  makes sub-s.  (1)  applicable  to               those cases in which a petition for winding-up               had  been presented before the  Amending  Act,               1953  came into force, but this  retrospective               effect  cannot be extended to claims or  suits               pending in the High Court at the time that the               Amending Act came into force."     "Applying  this test I hold that s. 45-O does not  apply to pending suits."     Sub-s.  (3)  of  s.  45-O  has  been  considered  to  be retrospective to a certain extent.  It was not necessary for the  purpose of this case to consider in what cases  and  in what manner its retrospective provisions could be used.     In Suburban Bank Ltd., v. Nistaran(1) the plaintiff  had claimed  inter  alia several sums advanced as loans  to  the defendant on June 27, 1945. Winding-up application was  made on May 12, 1948; the winding-up order was passed on June 30, 1948 and the suit was instituted on December 3, 1949 when s. 45-F of the-, (1) A.I.R. 1955 Cal. 172. 739 Banking  Companies Act, introduced by  the  Amending Act  23 of 1949, provided a special period of limitation.  The  suit was clearly time-barred in view of art. 59 of the Limitation Act and s. 45-F of the Banking Companies Act.  Consequently, the  question  arose as to whether s. 45-O, in view  of  the alteration of the law during the pendency of the suit, could apply  to that suit.  It was held that the question  whether the  proceeding  is  barred by the law  of  limitation  must depend  on  the  law  in  force  when  the  proceeding   was instituted and that sub-s. (1) of s. 45-O does not refer  to pending proceedings either in express words or by  necessary implication.  When considering the effect of s. 45-O, it was said at p. 175:                "The  general words ’a suit  or  application’               can  be given full effect by limiting them  to               suits  and  applications commenced  after  the               sub-section came into force.                " No occasion arose to consider the effect of               the  provisions  of sub-s. (3) of s.  45-O  in               proceedings  instituted  after  it  came  into               force.   In  M/s. Kesarichand v.S.B. Corporation(1) the period   of limitation   was  to  commence  from  December   29,   1950. Article 85 of the Limitation Act was held applicable to  the case. The application for winding-up of the company was made on  February 26, 1953 and winding-up order was  made on  May 26,  1953.   An  application under s. 45-D of  the  Act  was presented  on June 28, 1954, more than three years from  the commencement of the period of limitation but within 6 months from the commencement of the Amending Act of 1953.  December 29,  1950,  being  the starting point  for  limitation,  the period  of  limitation for the  application  expired  before December  30, 1953, a day before the Amending Act came  into

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force and the question did arise whether the applicant could be  allowed  to  get  the advantage  of  s.  45-O.   It  was contended  that even if the benefit of s. 45-O was given  to the  plaintiff  bank,  the application would  be  barred  by limitation as the period which was to be excluded in view of sub-s.  (1)  of  s.  45-O commenced from  the  date  of  the presentation of the petition for winding-up and ended on the date on which the winding-up order was made. This contention was negatived. It was held that s. 45-O was retrospective in operation.      In Jwala Prasad’s Case(2) the period of limitation  for taking proceedings under s. 235 of the Indian Companies Act, 1913, commenced on November 1, 1947.  The period  prescribed was  3 years from the date of the first appointment  of  the liquidator or from the arising of the cause of action.   The application for winding-up was made on February 17, 1950 and the  liquidator was appointed the same day.  The  liquidator applied for action under s. 235 on (1) A.I.R. 1959 Assam 162. (2) A.I.R. 1962 All. 486. 740  September 30, 1953, before the enforcement of the  Amending Act  of  1953.   It  was  not  a  case  therefore  where  an application  was made by the banking company  subsequent  to the   enactment  of  s.  45-O.   The  question   about   the application being made within ,time was to be decided on the law  of limitation as it stood on September 30,  1953.   The law of limitation as laid down in s. 235 was to apply taking into  consideration the provisions of s. 45-F of the Act  as it  stood  on September 30, 1953.  The Court held  that  the application  could  not be held to be in time  even  if  the advantage of the provisions of s. 45-F be given.  It however considered  the  effect of s. 45-O and said at p.  494  that there  was   nothing  in the section to  show  that  it  was intended to be retrospective in effect in the sense that  it revived  remedies  which  had already come to  art  end  and reliance  was  placed on the earlier Calcutta,  Punjab  ,and Assam cases referred to above.     I therefore hold that the provisions of sub-s. (1) of s. 45-0 are retrospective in effect and are applicable to suits or applications by a banking company in respect of causes of action  for  the suit or an application  about  which  suits could be instituted or applications made on the date of  the presentation  of  the winding-up petitions made  before  the commencement  of the Amending Act of 1953, even  though  the specified  period of limitation for such action had  expired before the enforcement of the Amending Act. In the present case, judgment-debtor respondent defaulted in payment of the second installment due on December 30,  1947. On May 1, 1948, the appellant’s right to execute the  decree for  the  entire  amount due under  the  decree  arose.  The petition  for the winding-up of the company was made on  May 11,   1948.  The  appellant’s  application   for   execution presented  in 1957 for the entire decretal amount due to  it would  not be time-barred if it had exercised its option  to have  realised  the  entire decretal amount  in  default  of payment  of  the second instalment.  The right  to  exercise such  an  option  arose on May 1,  1948,  earlier  than  the presentation   of  the  winding-up  application,   but   the appellant-decree  holder, however, appeared to  have  waived its  such  right  and  to  have  sought  execution  for  the realisation of the various installments.  Bachawat J.,  said in his judgment:    "The  respondent could waive and in fact has  waived  the benefit  of  that  option and  became  entitled  to  enforce payment of each installment as and when it fell due."

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It  was  therefore  that  an objection  was  raised  to  the execution  of  the decree for the installments  failing  due after the presentation of the winding-up application on  May 11, 1948 on the ground that the provisions of sub-s. (1)  of s.  45-0  applied  only to such suits  or  applications  the causes of action for which accrued before the relevant date, i.e.,  the date of the presentation of the  application  for winding-up.  The contention is that the provision about the 741 exclusion of time in the period of limitation predicate that the  period of limitation had commenced to run prior to  the beginning  of the period to be excluded and  that  therefore the provisions of sub-s. (1’) of s. 45-O would apply only to suits or applications with respect to such causes of  action which  had  accrued  prior to the  date  of  the  winding-up petition.   This  contention  for the  respondent  has  been accepted  by the High Court.  In this the High Court was  in error.     It is clear that the object of the Legislature was  that the  running of time during the period when  the  winding-up proceedings  were  pending  in  Court  and  when  the  Court supervised  those proceedings be not included in the  period of   limitation  prescribed  under  the  ordinary   law   of limitation.   The  banking  company  is  entitled  for   the exclusion  of  the  period  from  the  date  on  which   the application for winding-up had been presented up to the date of institution of the suit or filing of an application, from the  period  of  limitation  prescribed  for  any  suit   or application and it would be illogical to hold that it is not entitled to ask that a shorter period, as the case would  be when cause of action arose subsequently to the  presentation of the application for winding-up, be also excluded from the period of limitation prescribed for any suit or application. It  appears  to  me  that  the object and intention  of  the Legislature  in enacting sub-s. (1) of s. 45-O was that  the period  subsequent to the presentation of the  petition  for winding-up be not taken into consideration in computing  the period  of  limitation. The entire period will  be  excluded from consideration if the limitation had begun to run  prior to  the presentation of the petition for winding-up and  the relevant lesser period i.e., the period commencing from  the accrual  of  the cause of action subsequent to the  date  of presentation  of the petition for winding-up of the  company would  be excluded from the period of limitation which  also commences from the accrual of the cause of action.     It may be said that this means that the entire period of limitation  is  abrogated with respect to causes  of  action arising  subsequent  to  the date  of  presentation  of  the petition  for winding-up.  Such may be the result, but  that does not mean construing the provisions of sub-s. (1) of  s. 45-O in the context of the circumstances and reasons for the enactment  of  those provisions.  It would be  anomalous  to hold  that  action  can  be  taken  with  the  help  of  the provisions  of sub-s. (1) of s. 45-O with respect to  causes of action which had arisen much earlier than the date of the presentation  of  the  petition for  winding-up  but  action cannot  be  taken with respect to causes of  action  arising subsequent  to such a date if it had not been  taken  within the  prescribed period of limitation.  There is  nothing  in the  language of the sub-section, in my opinion,  to  accept the  contention  for the respondent whose  acceptance  would lead  to results which would not have been  contemplated  by the Legislature. 742     I   am  therefore  of  opinion  that   the   appellant’s

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application  for  execution  presented in  August  1957  was presented within limitation.  I would accordingly allow  the appeal with costs, set aside the order of the Division Bench of the High Court on Letters Patent Appeal and restore  that of the Single Judge. ORDER     This  appeal  is allowed.  The appellant  will  get  its costs in this Court and in the High Court. 743