1. A learned Judge of this Court referred the matter to a Division Bench in Company Petition No. 131 of 1999. The question which arises for consideration is as to whether the Debt Recovery Tribunal can ask the provisional Official Liquidator to take certain action without obtaining the leave of the Company Court in view of the decision of the Apex court in Allahabad Bank v. Canara Bank, I (2000) BC 627 (SC)=IV (2000) SLT 325=AIR 2000 SC 1535.

2. The fact of the matter, in short, is as follows : A company petition--C.P. No. 131 of 1999--has been filed by the creditors of M/s. Pennar Paterson Limited seeking its winding up whereupon by an order dated 24.11.1999 the Official Liquidator has been appointed as provisional liquidator to take possession of the assets of the company. Pursuant to the said order the provisional liquidator has taken custody of the assets of the company after preparing an inventory in the presence of the secured creditors. While so, the State Bank of Hyderabad and other banking companies who also claim to be secured creditors moved an application--O.A. No. 286 of 2000--before the Debt Recovery Tribunal wherein an application to appoint an Advocate-Commissioner to take possession of the assets of the company has also been made whereupon Mr. S. Ravikanth, Advocate has been appointed as Commissioner. Thereupon the Advocate-Commissioner requested the Official Liquidator through a letter to be present before him on the specified day. However, the Official Liquidator could not be present before him for want of communication of the aforementioned letter whereupon the Advocate-Commissioner filed a memo before the Debt Recovery Tribunal and pursuant thereto the Debt Recovery Tribunal passed the following order :

In view of the above provision of law this Tribunal can appoint a Commissioner for making an inventory of the properties of the defendant or for the sale thereof where it appears to it to be just and convenient. In the present case, the Commissioner was appointed only for making an inventory and he is neither directed to take possession of the inventoried properties nor to sell them. The Official Liquidator being an officer of the Court and being a party to these proceedings ought to have cooperated with the Advocate-Commissioner for making an inventory of the assets of the 1st defendant as he has got ample opportunity to have his say in the matter after the filing of the report of the Commissioner in case the applicant Banks insist for sale of the assets of the 1st defendant which will be considered after hearing both sides and on merits keeping in view the law laid down on the various provisions of the Act 51 of 1994 and the relevant provisions of the Companies Act. The attitude of the Official Liquidator in not cooperative with the Commissioner in making the inventory amounts to disobedience of the orders of this Tribunal.

Hence the Commissioner is directed to issue notices to the parties afresh and to make an inventory of the assets of the 1st defendant wherever they are and in case the Official Liquidator who is said to be in possession of the assets of the 1st defendant is not cooperating and is objecting for the same, he is at liberty to seek the assistance of the police having jurisdiction and to break open the locks and to make an inventory and submit his report by 25.1.2001.

3. In the aforesaid fact situation the Official Liquidator moved the Company Court by filing the present application praying for the following reliefs :

Setting aside the order dated 9.1.2001 passed in O.A.No. 286 of 2000 by the presiding officer of Hon'ble Debt Recovery Tribunal at Hyderabad.

Restraining the Advocate-Commissioner Mr. S. Ravikanth in O.A. No. 286 of 2000 appointed by the Hon'ble Debt Recovery Tribunal not to proceed further in the matter.

Order the costs of this application do come out of the assets of the Company, and Pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of this case.

4. The learned Judge in his order dated 26.2.2001 in Company Application No. 46 of 2001 observed thus :

... All these provisions would show that having regard to the fact that the Liquidator holding the assets of the company which is directed to be wound up and where the provisional liquidator is appointed pending a winding up order on behalf of the Company Court, in such a case whether it would be legal or proper having regard to the scheme of both the companies act and the act for the Tribunal constituted under the later enactment to deal with the property that is under the control of the Company Court which happens to be the High Court, without obtaining the leave of the Company Court, is a matter, in my view, which is not dealt with and decided by Their Lordships in the above cited case in Allahabad Bank (supra).

Having regard to the far reaching consequences such & the one with which this Court is confronted in the present case, and having regard to the hierarchy of the judicial system in this country, where the 2nd respondent- Tribunal is undoubtedly a subordinate Tribunal contemplated under Article 227 of the Constitution, the said aspect is required to be decided authoritatively by a Bench of appropriate strength, more particularly when by virtue of the declaration under Section 10 of the Companies Act, the Court having jurisdiction under the Companies Act is the High Court but not an individual Judge of the High Court. It is a different matter that for the reasons of administrative convenience and by virtue of the rules framed under the Companies Act, the company matters are assigned to an individual Judge. But what is at stake is the Majesty of the High Court.

5. Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 (for short 'the Act') was enacted to provide for the establishment of a Tribunal for expeditious adjudication and Recovery of Debts Due to Banks and Financial Institutions and for matters connected therewith or incidental thereto. The Tribunal is constituted in terms of Sub-section (1) of Section 3 of the Act.

6. Chapter III of the said Act provides for jurisdiction, powers and authorities of the Tribunal. Sections 17 and 18 occurring in Chapter III of the Act read thus :

Jurisdiction, powers and authority of Tribunals.--(1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the Banks and Financial Institutions for Recovery of Debts Due to such Banks and Financial Institutions.

(2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act.

Bar of jurisdiction,--On and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in Section 17.

7. With regard to the matters provided for in the said Act the jurisdiction of the Tribunal subject to the jurisdiction of the Supreme Court and the High Courts exercising jurisdiction under Articles 226 and 227 of the Constitution, is, therefore, exclusive. Chapter V of the Act provides for recovery of debt determined by Tribunal. Section 25 reads thus :

Modes of recovery ofdebts.--The Recovery Officer shall, on receipt of the copy of the certificate under Sub-section (7) of Section 19, proceed to recover the amount of debt specified in the certificate by one or more of the following modes, namely-

(a) attachment and sale of the movable or immovable property of the defendant;

(b) arrest of the defendant and his detention in prison;

(c) appointing a receiver for the management of the movable or immovable properties of the defendant;

8. Other modes of recovery have been provided for in Section 28, Sub-section (5) whereof reads thus :

The recovery officer may recover any amount of debt due from the defendant by distraint and sale of his movable property in the manner laid down in the Third Schedule to the Income Tax Act, 1961 (43 of 1961).

9. Sections 19(2), 19(18)(e) and 19(19) of the Act read thus :

Where a Bank or a Financial Institution, which has to recover its debt from any person, has filed an application to the Tribunal under Sub-section (1) and against the same person another Bank or Financial Institution also has a claim to recover its debt, then, the later Bank or Financial Institution may join the applicant Bank or Financial Institution at any stage of the proceedings, before the final order is passed, by making an application to that Tribunal.

Where it appears to the Tribunal to be just and convenient, the Tribunal may, by order-

(e) appoint a Commissioner for preparation of an inventory of the properties of the defendant or for the sale thereof.

Where a certificate of recovery is issued against a company registered under the Companies Act, 1956, the Tribunal may order the sale proceeds of such company to be distributed among its secured creditors in accordance with the provisions of Section 529-A of the Companies Act, 1956 and to pay the surplus, if any, to the company.

10. Rule 31 of the second schedule appended to the Income Tax Act of the Income Tax Rules reads thus :

Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Tax Recovery Officer by whom the notice is issued :

Provided that, where such property is in the custody of a Court, any question of title or priority arising between the Tax Recovery Officer and any other person, not being the defaulter, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.

11. It is also relevant at this juncture to note certain provisions of the Companies Act. Chapter II of Part VII of the Companies Act inter alia provides for cases in which a company may be wound up by the Court. Sections 437, 442, 446, 529-A and 537 of the Companies Act read thus :

437. Power of High Court to retain winding up proceedings in District Court.--The High Court may direct that a District Court in which proceedings for winding up a company have been commenced, shall retain and continue the proceedings, although it may not be the Court in which they ought to have been commenced.

442. Power of Court to stay or restrain proceedings against company.--At any time after the presentation of a winding up petition and before a winding up order has been made, the company, or any creditor or contributory, may-

(a) where any suit or proceeding against the company is pending in the Supreme Court or in any High Court, apply to the Court in which the suit or proceeding is pending for a stay of proceedings therein; and

(b) where any suit or proceeding is pending against the company in any other Court, apply to the Court having jurisdiction to wind up the company, to restrain further proceedings in the suit or proceeding :

and the Court to which application is so made may stay or restrain the proceedings accordingly, on such terms as it thinks fit.

446. Suits stayed on winding up order.--(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Court and subject to such terms as the Court may impose.

(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-

(a) any suit or proceeding by or against the company;

(b) any claim made by or against the company (including claims by or against any of its branches in India);

(c) any application made under Section 391 by or in respect of the company;

(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company;

whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.

529. A Overriding preferential payments.--(1) Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company-

(a) workmen's dues; and

(b) debts due to secured creditors to the extent such debts rank under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such dues shall be paid in priority to all other debts.

(2) The debts payable under Clause (a) and Clause (b) of Sub-section (1) shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions.

537. Avoidance of certain attachments, executions, etc., in winding up by or subject to supervision of Court.--(1) Where any company is being wound up by or subject to the supervision of the Court-

(a) any attachment, distress or execution put in force, without leave of the Court, against the estate or effects of the company, after the commencement of the winding up; or

(b) any sale held, without leave of the Court, of any of the properties or effects of the company after such commencement;

shall be void.

(2) Nothing in this section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government.

12. Section 456 of the Companies Act provides for the custody of the company's property. The said provision is as follows :

Custody of company's property.--(1) where a winding up order has been made or where a provisional liquidator has been appointed, the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is. or appears to be entitled.

(1A) for the purpose of enabling the liquidator or the provisional liquidator, as the case may be, to take into his custody or under his control, any property, effects or actionable claims to which the company is or appears to be entitled, the liquidator or the provisional liquidator, as the case may be, may by writing request the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction such property, effects or actionable claims or any books of account or other documents of the company may be found, to take possession thereof, and the Chief Presidency Magistrate or the District Magistrate may thereupon after such notice as he may think fit to give to any party, take possession of such property, effects, actionable claims, books of account or other documents and deliver possession thereof to the liquidator or the provisional liquidator.

(1B) For the purpose of securing compliance with the provisions of Sub-section (1A), the Chief Presidency Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary.

(2) All the property and effects of the company shall be deemed to be in the custody of the Court as from the date of order for the winding up of the company.

13. Section 457 of the Companies Act provides for the power of the liquidator.

14. The controversy, which arises for consideration of this Court, is as to whether having regard to the provisions contained in the said Act vis-a-vis the Companies Act, the Advocate-Commissioner appointed by the Tribunal could take possession of certain properties belonging to the debtor company without the leave of the Company Court.

15. The apparent conflict between the two Acts came up for consideration before the Apex Court in Allahabad Bank's case (supra). The Apex Court was dealing with a case which in the words of the Apex Court is thus :

The case raises issues relating to the impact of the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter called the RDB Act) on the provisions of the Companies Act, 1956. The immediate dispute before us is between two nationalized Banks, the Allahabad Bank (appellant) on the one hand which has obtained a simple money decree against the debtor-company (M/s. M.S. Shoes (East) Co. Ltd. (from the Debt Recovery Tribunal at Delhi under the RDB Act and the Canara Bank on the other, whose claim as a secured creditor is still pending before the same Tribunal at Delhi against the same company. The Allahabad Bank has appealed before us against an order passed by the learned Company Judge under Sections 442 and 537 of the Companies Act (in a winding up petition by Ranbaxy Ltd.) staying the sale proceedings taken out by the Allahabad Bank before the Recovery Officer under the RDB Act. Applications for winding up the defendant company are pending in the Delhi High Court; As yet no winding up order has been passed nor a provisional liquidator appointed as contemplated by Section 446(1). Point has been raised by the respondent Canara Bank that the appellant Allahabad Bank is obliged to seek leave of the Company Court under the Companies Act, 1956 and the Company Court can stay these proceedings as aforesaid under Sections 442 and 537 for the ultimate purpose of deciding the priorities in the event of a winding up order or other order appointing a provisional liquidator being passed under Section 446(1) of the Companies Act, 1956. After the appellant obtained decree from the Debt Recovery Tribunal, some properties of the company have been sold by the Recovery Officer. Appellant contends that the Tribunal under the RDB Act can itself deal with the question of appropriation of sate proceeds in respect of sales of the company properties held at the instance of the appellant and the priorities and that the appellant alone is entitled to all the sums so realised.

16. In the aforementioned backdrop the Apex Court formulated the following questions: From the aforesaid contentions, the following points arise for consideration :

(1) Whether in respect of proceedings under the RDB Act at the stage of adjudication for the money due to the Banks or Financial Institutions and at the stage of execution for recovery of monies under the RDB Act, the Tribunal and the Recovery Officers are conferred exclusive jurisdiction in their respective spheres?

(2) Whether for initiation of various proceedings by the Banks and Financial Institutions under the RDB Act, leave of the Company Court is necessary under Section 537 before a winding up order is passed against the Company or before provisional liquidator is appointed under Section 446(1) and whether the Company Court can pass orders of stay of proceedings before the Tribunal, in exercise of powers under Section 442?

(3) Whether after a winding up order is passed under Section 446(1) of the Company Act or a provisional liquidator is appointed, whether the Company Court can stay proceedings under the RDB Act, transfer them to itself and also decide questions of liability, execution and priority under Sections 446(2) and (3) read with Sections 529, 529A and 530, etc., of the Companies Act or whether these questions are all within the exclusive jurisdiction of the Tribunal?

(4) Whether, in case it is decided that the distribution of monies is to be done only by the Tribunal, the provisions of Section 73, CPC and Sub-clauses (1) and (2) of Section 529, Sction 530 of the Companies Court also apply--apart from Section 529A to the proceedings before the Tribunal under the RDB Act?

(5) Whether in view of provisions in sections 19(2) and 19(19) as introduced by Ordinance 1/2000, the Tribunal can permit the appellant-Bank alone to appropriate the entire sale proceeds Vealised by the appellant except to the limited extent restricted by Section 529A? Can the secured creditors like the Canara Bank claim under Section 19(9) any part of the realisations made by the Recovery Officer and is there any difference between cases where the secured creditor opts to stand outside the winding up and where he goes before the Company Court?

(6) What is the relief to be granted on the facts of the case since the Recovery Officer has now sold some properties of the company and the monies are lying partly in the Tribunal or partly in this Court?

17. It was held having regard to the provisions of Sections 17, 18 and 25 of the said Act that the adjudication of the liability of the defendant to the appellant-Bank as regards the provisions of Sections 17 and 18 of the Act is exclusive. Even as regards execution it was held that the jurisdiction of the recovery officer is exclusive.

18. As regards point Nos. (2) and (3) i.e. effect of the special law vis-a-vis the Companies Act it was help :

For the aforesaid reasons, we hold that at the stage of adjudication under Section 17 and execution of the certificate under Section 25, etc., the provisions of the RDB Act, 1993 confer exclusive jurisdiction in the Tribunal and the Recovery Officer in respect of debts payable to Banks and Financial Institutions and there can be no interference by the Company Court under Section 442 read with Section 537 or under Section 446 of the Companies Act, 1956. In respect of the monies realised under the RDB Act, the question of priorities among the Banks and Financial Institutions and other creditors can be decided only by the Tribunal under the RDB Act and in accordance with Section 19(19) read with Section 529A of the Companies Act and in no other manner. The provisions of the RDB Act. 1993 are to the above extent inconsistent with the provisions of the Companies Act, 1956 and the latter Act has to yield to the Provisions of the former. This position holds good during the pendency of the winding up petition against the debtor-company and also after a winding up order is passed. No leave of the Company Court is necessary for initiating or continuing the proceedings under the RDB Act, 1993, Points 2 and 3 are decided accordingly in favour of the appellant and against the respondents.

(Underlining is ours) However, in our opinion, the aforementioned decision is not an authority for the proposition with which this Court is concerned in this case.

19. In Dias on Jurisprudence, Fifth Edition at page 143, it is stated-

Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. Rationale and dicta tend to shade into each other. The former have law-quality and are binding on lower Courts; dicta, too, have law-quality but are not binding at all. Vis-a-vis a higher Court even the ratio decidendi of a lower Court decision has only persuasive force like that of a dictum. It has been pointed out that some dicta are so authoritative that the distinction between ratio and dictum is reduced to vanishing point. Dicta, which have no force, are propositions stated by way of illustration or on hypothetical facts. Greater difficulties attend rulings of law which are subsequently relegated to the status of dicta by interpretation. The distinction in such cases between ratio and dictum is but a device employed by subsequent Courts for the adoption or rejection of doctrine expressed in previous cases according to the inclination of the Judges. An example would be the treatment of Lord Atkins' neighbour proposition in subsequent cases.

20. In Salmond on Jurisprudence 12th Edition, page 29, it is stated-

One of the essential features of the doctrine of precedent in the common law is that rules of law are developed in the very process of application. This means that they are created by Judges and not by teachers and other academic Lawyers. However, learned they may be. It also means that they are created by Judges only when acting as Judges i.e., when deciding cases and not for example when giving lectures or other addresses; statements made by Judges in their extra-judicial capacity, like other extra-judicial opinions, are without binding authority. For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides.

In the course of his judgment, however, a Judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situation and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by Counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision. Or again, having decided the case on one point, the Judge may feel it unnecessary to pronounce on the other points raised by the parties, but he may nevertheless want to indicate how he would have decided these points if necessary. Here again we are not given the Judge's final decision on a live issue, so that once more it would be unwise to endow it with as much authority as the actual decision. These observations by the way, obiter dicta are without binding authority, but are nonetheless important; not only do they help to rationalize the law but they serve to suggest solutions to problems not yet decided by Courts. Indeed dicta of the House of Lords or of Judges who were masters of their fields, like Lord Blackburn, may often in practice enjoy greater prestige than the rationale of lesser Judges.

21. In C.I.T. v. Sun Engineering Works (P) Limited, , Dr. A.S. Anand, J (as the learned Judge then was) stated the law in the following terms :

... It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court....."

22. In Java Sen v. Sujit Kr. Sarkar, 2000(1) ILR A & N 145, it was held-

"It is now well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process (See Quinn v. Lealhain, ( 1990-1903) AER (Rep.) 1, Krishna Kumar v. Union of India, , Commissioner of Income Tax v. Sun Engineering Co. Ltd., , Regional Manager v. Pawan Kumar Debey, and Municipal Corporation of Delhi v. Gurnam Kaur, 1988(1) SCC 101"

23. It-is also a settled law that a decision is not an authority on a point which was not argued [see Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, ].

24. In A-One Granites v. State of U.P., II (2001) SLT 360=2001 AIR SCW 848, it is observed :

The first question which falls for consideration of this Court is as to whether the question regarding applicability of Rule 72 of the Rules in relation to the present lease is concluded by the earlier decision of this Court rendered in Prem Nath Sharma v. State of U.P., . From a bare perusal of the said judgment of this Court it would be clear that the question as to whether Rule 72 was applicable or not was never canvassed before this Court and the only question which was considered was whether there was violation of the said rule.

This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd v. Bremith Ltd., (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment.

25. In Arnil Das v. State of Bihar, , the Apex Court observed :

A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.

26. A decision, having regard to the aforementioned authoritative pronouncements of the Apex Court must, thus, be read in the context what has been rendered. A decision as is well known cannot be read as a statute. The ratio must be culled out from a decision upon reading the judgment in its entirety and not in isolation.

27. The point which falls for consideration of this Court did not fall for consideration before the Apex. Court in Allahabad bank's case. It is one thing to say that the Tribunal has exclusive jurisdiction in relation to adjudication and execution but it is another thing to say that such jurisdiction has to be exercised in a particular manner.

28. The Tribunal although has a plenary jurisdiction, its right of execution, in our opinion, must be done having regard to the provisions laid down therein. We must also take into consideration the fact that the Tribunal is subject to the supervisory jurisdiction of this Court. The jurisdiction of the Tribunal for adjudication and the right of execution vis-a-vis the jurisdiction of the Company Court has been determined in Allahabad Bank's case but not the mode of recovery thereof.

29. When a liquidator or a provisional liquidator as the case may be is directed to take into his custody or under the control the property, effects and actionable claims, the company is or appears to be entitled to by reason of the provisions contained in Section 456 of the Companies Act, there cannot be any doubt whatsoever that leave of the Court must be obtained. By reason of the aforementioned provision a legal fiction is created. In East End Dwellings Co., Ltd. v. Finsbury Borough Council, 1951(2) All ER 587, Lord Asquith, J laid down the law in the following terms :

If one is bidden to treat an imaginary stale of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs. As some of my noble and learned friends have pointed out, if Parliament had intended the meaning contended for by the respondents, nothing would have been easier than to provide that the value should be assessed as if no war damage had occurred. Even, however, if the meaning of the words to be construed were not plain and the "policy" of the legislation could legitimately be invoked as an interpretative factor, I am far from subscribing to the view that the policy in question is that for which the respondents contend, or that its importation would produce the result which they desire.

30. The deeming provision contained in Section 456 of the Companies Act is, therefore, of wide amplitude.

31. It is now well settled principle of law that provisions of two statutes, when they appear to be in conflict with each other, must be read harmoniously and efforts should be made to give effect to the provisions of both the statutes. For the aforementioned purpose, recourse to the rule of purposive construction may be necessary. In Francis Bennion Statutory Interpretation, Second Edition, as regards the rule of 'purposive construction', it has been stated at Section 304 as under :

A purposive construction of an enactment is one which gives effect to the legislative purpose by-

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in the Code called a purposive-and-literal construction),

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).

32. It is further a well settled principle of law that when an order is passed by one Court, the doctrine of amity or comity of reasons demands that no order contrary thereto or inconsistent therewith should be passed. In Lewis Injunction the law has been laid down. In Law of Injunctions by Lewis & Spelling, the law has been stated in the following terms-

Conflict and loss of jurisdiction, Where a Court having general jurisdiction and having acquired jurisdiction of the subject matter has issued an injunction, a Court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction. There is no established rule of exclusion which would deprive a Court of jurisdiction to issue an injunction because of the issuance of an injunction between the same parties appertaining to the same subject matter, but there is what may properly be termed a judicial comity on the subject. And even where it is a case of one Court having refused to grant an injunction, while such refusal does not exclude another coordinate Court of Judge from jurisdiction, yet the granting of the injunction by a second Judge may lead to complications and retaliatory action. The jurisdiction to afford the relief is not lost by the fact that during the pendency of the suit the act which it was sought to enjoin has been done. In such case the Court may require restoration by the defendant of the status existing at the time jurisdiction was acquired, even though no preliminary injunction or restraining order has been issued. And speaking generally, it may be said that though a party filing a bill for an injunction may fail to procure a preliminary injunction, yet any act after the Court has acquired jurisdiction will be subject to the power of the Court to compel restoration of the former condition or to enforce some other proper relief. On the same principle, the jurisdiction once acquired is not ousted by the fact that pending the suit the right to a permanent injunction is lost by something transpiring beyond control of the Court and parties to the litigation.

33. This aspect of the matter has also been considered in S.S. Pharmaceuticals Ltd v. P.K. Sen Gupta, 1995(2) CHN 386.

34. Although we do not intend to lay down a law to the effect that the Tribunal does not have a plenary jurisdiction as the said question does not arise for our consideration or assuming that the Tribunal has a plenary jurisdiction having regard to the rule of exclusivity as envisaged by the Apex Court the mode and manner laid down for Recovery of the Debts Due to Banking or Financial Institutions must, not only strictly, be adhered to having regard to the provisions contained in Rule 31 of the II Schedule appended to the Income Tax Act which has been incorporated by reference in section of the said Act.

35. Even otherwise, when the property is in custody, leave of the Court having plenary jurisdiction, keeping in view the principles adumbrated in Order 40 of Code of Civil Procedure must be obtained.

36. Such leave is also necessary having regard to the fact that in terms of Section 10 of the Companies Act and in particular the fact that this Court also exercise power of supervision under Article 227 of the Constitution over such Courts, we are of the opinion that it was incumbent upon the Advocate-Commissioner to obtain leave of this Court. The reference is answered accordingly.

The learned Counsel appearing on behalf of the Bank Mr. E. Ramanadham, prays that in terms of Article 133-A of the Constitution of India, leave may be granted to move the Supreme Court of India. We are of the opinion that this case does not involve any question of general importance, inasmuch as the judgment is based upon the decisions of the Apex Court. Leave is refused.