Kapur, J.:— On the 7th May, 1945, Thomas Janda purchased a factory known as “Universal Rubber Works” and on 13th July, 1945, he and his wife Mary Janda floated a private limited company with its registered office at Lahore under the name and style of “Janda Rubber Works Limited”. It is alleged that this registered office of the company was transferred to Amritsar on 2nd July, 1947 but before this i.e on the 31st July, 1945, the Janda Rubber Works Limited resolved to take over from Thomas janda the factory known as the Universal Rubber works for a consideration of Rs. 5,50,000/- and on 31st December, 1946, shares worth Rs. 4,01,000 were issued to Thomas and Mary Janda in lieu of the part price of the Universal Rubber Works and it is now claimed that by virtue of this the Universal Rubber Works belonged to the Janda Rubber Works Limited (now in voluntary liquidation), but no deed of sale or document evidencing the transfer of the property from Thomas Janda to Janda Rubber Works Limited has been proved to have been executed or brought to our notice.

2. On 14th January, 1949, so the liquidator alleges and this is stated in the affidavit of the Deputy Custodian also, Mr. and Mrs. Janda made an affidavit in the High Court of Bombay in certain proceedings relating to overdraft account of Universal Rubber Works Bombay with the Exchange Bank of India and Africa Limited now in liquidation. Therein it was declared that the Universal Rubber Works was a private property Page: 187of Mr. and Mrs. Janda and a liability for an overdraft of Rs. 8,00,000 accepted by them. He is also alleged to have stated in that affidavit that the resolutions mentioned above, dated 31st July, 1945, were never acted upon. On 18th January, 1949, the Bank made transfer entries showing that the Universal Rubber Works was the property of a private partnership. On 17th April, 1949 a resolution for the winding up of the company was passed and subsequently an order for supervision of this Court was passed on 19th August, 1949 and on 1st September, 1949, the liquidator made an application in this Court under sections 216 and 222 of the Companies Act in which he alleged that the Collector of Bombay as Deputy Custodian of evacuee property without notice to the liquidator or leave of this Court had declared and sealed the factory—Universal Rubber Works—and was threatening to take possession of all the company's property, that as the registered office of the company was within the Dominion of India and the company was being wound up under the supervision of this Court, even if the share-holders were evacuees no proceedings could be taken by the Collector without leave of the Court. He, therefore, prayed for the issue of an injunction to the Collector of Bombay to remove his seal from the factory—Universal Rubber Works—and not to take possession of any other properties of the company which were in lawful possession of the liquidator not, without in the first instance, obtaining leave of this court.

3. The Collector of Bombay, Mr. Raneksha Rustomji Mehar, who also happens to be the Deputy Custodian of evacuee property, made an affidavit in opposition in which he stated that the Universal Rubber Works, Bombay did not form part of the assets of the Janda Rubber Works Limited (in liquidation) but belonged to Mr. and Mrs. Thomas Jhanda who were the only partners in the said concern, that the Janda Robber Works Limited had no concern whatsoever with the firm “Universal Rubber Works”. This he did on the strength of a statement made on oath both by Mr. and Mrs. Janda in the High Court of Bombay. He further submitted that there was other evidence before him from which he came to the conclusion that the Universal Rubber works belonged to Mr. and Mrs. Thomas Janda who were evacuees and being satisfied that the property belonged to those persons and not to Janda Rubber Works Limited he had notified this property as evacuee property which vested in him under section 4 of the Bombay Evacuees (Administration of Property) Act (XXIV of 1949) and that he assumed control and possession of the said property in exercise of the powers vested in him under section 6 of the Act. He also submitted in the affidavit that it was for him or for the Provincial Government to decide whether Mr. and Mrs. Janda were evacuees or not and as Mr. and Mrs. Janda were residing in Lahore in Pakistan he had declared them to be evacuees under the Act. He further said that if the liquidator had any interest in, or right over, the factory of the Universal Rubber works his proper remedy was as given in the Bombay Evacuees Act. He challenged the jurisdiction of this Court on the ground of sections 20 and 24 of the Act.

4. As the matter was of some importance, I with the sanction of my Lord the Chief Justice under rule (1) proviso (b) of Chapter 3-B had the matter placed before a Division Bench.

5. The learned Advocate General who has appeared for the Collector and Deputy Custodian of evacuee property has taken two objections to the Page: 188jurisdiction of this Court: (1) he submits that the action taken by the Deputy Custodian was under the Bombay Evacuee (Administration of Property) Act, 1949 and that Act expressly excluded the jurisdiction of the Court to interfere with anything done or action taken under that Act and also that it was impliedly hatred because of the Bombay Act and (2) that in this case there is a dispute as to the ownership of the property and under the Indian Companies Act no power is given to this Court to adjudicate upon that dispute.

6. I shall take the first objection which is under the Bombay Act. Section 4 of that Act deals with vesting of evacuee property in the Custodian. It says:—

“All evacuee property situated within the Province shall vest in the Custodian for the purpose of this Act and shall continue to be so vested until the Provincial Government by notification otherwise directs.”

7. A sub-section has been added to section 4 as section 4(2) which says:—

“The Custodian may, from time to time, notify either by publication in the official Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under this Act.”

8. Acting under the power given to the Custodian under this Act a notification was issued on 25th August, 1949 and also a vesting order of the same date. By an order dated 29th August, 1949 he assumed possession.

9. Section 6(1) of the Act deals with the power of the Custodian to take possession of evacuee property. It says:—

“Subject to the provisions of this Act, a Custodian may by general or special order with reference to the location or description of a specific or any class of evacuee property assume possession of, or control over, the property mentioned in the order which shall be published in the Official Gazette. From the date of the order, the holder of such property, if any, shall be deemed to be holding it on behalf of the Custodian and shall on demand deliver possession of it to the Custodian or a person authorised by him in this behalf.

Section 7 deals with the enquiry into claims to evacuee property. Under sub-section (1) of this section any person claiming any right to or interest in any such property may prefer such claims to the Custodian within 30 days from the date on which the possession of the property was taken. Sub-section (5) gives a power of appeal to the Bombay City Civil Court and sub-section (6) the power of the revision to the High Court of Bombay and subject to this under sub-section (7) the order of the Custodian is final and conclusive.

Sections 20 and 24 bar the jurisdiction of Civil Courts and the taking of any legal proceedings. They are as follows:—

Section 20:—Except as provided in this Act, no order made in exercise of any power conferred by this Act shall be called in question in any Court.

Section 24:—No suit or prosecution or other legal proceedings shall the against the Provincial Government or the Custodian * * * * in respect of anything which is in good faith done or intended to be done in pursuance of this Act.”

10. I should have added that section 2(b) of the Bombay Act gives the definition of the word “evacuee”.

11. A new Ordinance (No. XXVII of 1949) was passed by the Central Government replacing the various Acts of the Central Government as well as the Acts passed by the Provinces. Section 53(2) and (3) repeals the Bombay Act and it is stated therein that all acts done under the Provincial Page: 189Acts shall be deeded to be the acts done under the new Ordinance. Sections 24 and 25 in Chapter V relate to appeals. Section 43 of the Ordinance takes away the power of the Civil Court and according to the submission of the learned Advocate General that includes Courts within the meaning of the Indian Companies Act also with this submission I agree.

12. The learned Advocate General also submits that expressly or by necessary intendment the jurisdiction of this Court is barred by the provisions of the new Ordinance also and he contends that as the Ordinance gives special remedy for the adjudication of any complaints regarding or claims to evacuee property by implication, at any rate the power of this Court to entertain the application of the liquidator must be taken to be barred. He relied on judgment of ??? J. in Thin Yen v. Secretary of State A.I.R 1939 Cal. 763. There the Customs authorities had confiscated goods under the Sea Customs Act on the ground that after they had been landed and before they had passed the Custom house the owner had removed them with the intention of defrauding the revenue. The owner brought a suit for declaration that the order for confiscation was illegal and prayed for return of the goods or in the alternative for a decree for their value. It was held by the learned Judge that no suit lay under section 266(1) of the Government of India Act and he also observed:—

“It is a well known principle that where a statute creates a duty or imposes a liability and prescribes a specific remedy in case of neglect to perform the duty or discharge the liability, no remedy can be taken but the particular remedy prescribed by the statute.”

13. In The Queen v. The County Court Judge (1887) 18 Q.B 704 Lord Esher observed at page 707:—

“The ordinary rule of construction therefore applies * * * * that where the legislature has passed a new statute giving a new remedy that remedy is the only one which can he pursued.”

14. In a recent case Sultan Ali v. Nur Hussain A.I.R 1949 Lah. 131 a Full Bench of the Lahore High Court has held to the same effect. I agree that where a statute estates powers and a citizen has a complaint or has suffered an injury because of the exercise of powers conferred by that statute, the remedy for him is to proceed in accordance with the provisions of that statute and seek under it the particular remedy prescribed by it. Their Lordships of the Privy Council in Raleigh Investment Co. Ltd. v. The Governor-General in Council A.I.R 1947 P.C 78 where a suit had been brought to set aside or modify an assessment on the ground that it was ultra vires held that as the assessment had been made under the machinery provided by the Act no suit was competent as it was directed exclusively to a modification of the assessment. One of the contentions of the plaintiffs in that case was that to ascertain whether a Civil Court is barred from reviewing assessment brought before it, the legal merits of the assessment are first to be considered and decided and if the assessment is determined to be right in law the jurisdiction of the Civil Court to entertain the suit is excluded. On the other hand, if the assessment is determined to be wrong the jurisdiction of the Civil Court to entertain the suit would arise. In reply to this argument their Lordships said:—

“Jurisdiction is made to depend not on subject matter but on the correctness of the suitor's contention as respects subject matter. The language of the section is inapt to justify any such capricious method of determining jurisdiction.”

15. They went on to say:—

“In conclusion their Lordships would observe that the scheme of the Act is to set up a particular machinery by the use of which alone total income assessable for income-tax is to be ascertained * * Jurisdiction to question the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The only doubt, indeed, in their Lordships mind is whether any express provision was necessary in order to exclude jurisdiction in a Civil Court to set aside or modify an assessment.”

16. Now these are very strong words. In my opinion, therefore, the Bombay Act, replaced as it is by the Ordinance of the Central Government expressly takes away the power of the civil courts which, in my opinion, would include the High Court to adjudicate upon any claim laid or made by a person objecting to any action taken under the Evacuee Act or Ordinance and after a perusal of the cases that have been cited above I am of the opinion that as a special machinery has been provided, the only remedy open to the Liquidator is to go and apply under the provision of the Bombay Act. As a matter of fact we have been informed that the liquidator has already applied to the Custodian under the provisions of the Act. This contention of the learned Advocate-General, therefore, is well-founded and must be given effect to.

17. The second objection of the learned Advocate-General was that under the Companies Act there is no power in the Court to adjudicate upon any dispute which arises between the liquidator and a third party with regard to any property which the liquidator claims as belonging to the company in liquidation. Section 216 of the Companies Act gives the power to the liquidator to apply to this Court to determine any question arising in the winding up of the company, or to exercise, as respects the enforcing of calls; staying of proceedings or any other matter. All or any of the powers which the Court might exercise if the company were being wound up by the Court. Accordingly to his submission, the powers of this Court are limited to determine questions mentioned therein and the power to determine disputes with regard to the ownership of the property is not one of the powers therein given.

18. The learned Advocate-General further submitted that in bankruptcy law under section 4 of the Provincial Insolvency Act the Court had been expressly given power to determine, questions of this kind but no such power had been given under the Companies Act to the Court. In support of his argument the learned Advocate-General relied on page 19 of the second volume of the Palmer's Companies Precedents where it is said that the Court has no jurisdiction to decide questions of title or priority of any nature whatsoever in the case of an Insolvency Court.

19. In re Vimbos Limited (1900) 1 Ch. 470 a Mr. Meadowcroft was appointed under the power given by the deed of debentures a receiver of the property charged by the debentures. The company which had issued the debentures went into voluntary liquidation which was afterwards continued under supervision. The receiver had taken possession of the property Page: 191and sold the business for a large sum of money. After paying the debenture-holders some £ 10,000 were left which were handed over to the liquidator and accounts sent to him and the Receiver retained £ 1,608 as his remuneration. The liquidator took out summons so that the amount of remuneration payable to the receiver might be fixed and that be might be ordered to pay to the applicant any balance remaining in his hands. It was held that the Court had no jurisdiction to make the order on the summons but the liquidator must bring an action against the receiver. Cozens-Hardy J. said:—

“It is not the law that the liquidator can get any claim made by any agent employed by the company assessed in a proceeding like this…………………….. It seems to me that the ordinary course of law would have to be followed—namely, an action commenced by the liquidator against the alleged agent claiming this money as the money of the company and then the auctioneer or stockbroker “(as an agent)” as the case might be, would have to raise his contention that he was entitled to retain, out of the money in his hands, the remuneration which be claims. I …………………..am bound to find out that I have no jurisdiction”.

20. The liquidator in this case is really asking us in these summary proceedings to adjudicate on the rights which are claimed by the Custodian and himself. This, in my opinion, cannot be done under the provisions of the Companies Act.

21. Mr. Chawla in reply strongly relied on section 185 of the Companies Act and be said that the Court had the power to make an order requiring the delivery of the property of the company to the liquidator. But that power again can only be used against certain persons specified in that section and not against third parties. That section, in my opinion, cannot be strained to bring in those persons who are not within its express words.

22. In re. United English and Scottish Assurance Company (1867) 3 Ch. A. 787 a creditor of a joint stock company obtained a garnishee order under section 71 of the Common law Procedure Act, attaching the money of the company in the hands of their bankers. Subsequently, a petition for the winding up of the company was presented, but before the winding up order, the creditor obtained an order for payment of the money and received it from the bankers. The official liquidator took out summons under the Companies Act for the refund of the money. It was held that the creditor was not, a trustee within the meaning of section 100 of the Companies Act and that the Court had no jurisdiction to make the order. At page 790 Sir W. Page Wood, L.J observed:—

“Referring to the tooth section, the objection of the enactment was to prevent the expense of the company bringing actions against the persons named, who are its own contributories and officers and ought not to be extended to other persons…………………………… ………… It seems plain to me that there is no jurisdiction under this section to make the order.”

23. In re. Vimbos Limited (1900) 1 Ch. 470 a case that I have referred to above, the Court went further and held that even if the dispute was between the persons named in this section and if there was a bona fide dispute as to the liquidator's right the proceedings will have to be taken in the ordinary way.

24. In John Broad v. Official Liquidator, Agra Spinning and Weaving Mills Co. Ltd. A.I.R 1936 All. 898 it has been held that a company Judge has jurisdiction for the purpose of carrying out the liquidation that is the realization of the assets of the company and payment to the creditors, but he has no jurisdiction to enforce an order against persons other than those mentioned in section 185. Judicial decisions of matters which may arise with third parties owing to transactions entered into by the liquidator are beyond the pale of jurisdiction to the company Judge and no order cart be made with regard to these matters.

25. In re. East of England Bank (1865) 1 Ed. 219 it was held that section 165 of the Companies Act, 1862 (section 235 of the present Indian Act) does not apply as against an executor of a deceased director.

26. In re. Ilkley Hotel Company (1893) 1 Q.B.D 248 at page 250 Cave J., observed:—

“The functions of the Court are administrative and there is no ground for collecting from the language of the Acts an implied power to decide such a question as this.”

27. The question to be decided in that case was whether a county Court Judge could decide a question as to title to property after a petition to wind up a company was presented, the question having arisen before the commencement of the winding up order between the company and a stranger.

28. From a perusal of these cases I am of the opinion that the Indian Companies Act does not give any power to the Court to adjudicate upon questions of title which are in dispute between a liquidator and third parties.

29. Mr. Chawla submitted that his application really was that the Custodian could not take any action under the Bombay Act or under the Ordinance without the leave of this Court under section 171 of the Indian Companies Act. He placed reliance on the Shiromani Sugar Mills Ltd. v. The Secretary of State A.I.R 1946 F.C 16 where it was held that the Income-Tax Officer before he can move the Collector under section 46(2) of the Indian Companies Act must obtain leave of the Court under section 171. In my judgment, the action of the Custodian is a purely executive act and it cannot be termed as legal proceedings within the meaning of the phrase as used in section 171. In that case the Income-Tax Officer had to move the Collector to take proceedings for recovery of Income-Tax as arrears of land revenue which certainly would be a legal proceeding, but it cannot be said by any stretch of language that any order passed by the Custodian under the Bombay Act in ordering the vesting of evacuee property in him or in taking possession of the evacuee property can be considered to be a legal proceeding. In my opinion, the wording of the section show clearly that they, are an exercise of executive authority and, therefore, he leave was necessary. As the dispute is a bona fide one with regard to the property, which is claimed by the Custodian, if leave is necessary I would hereby give him leave to proceed as was suggested by the learned Judges of the Allahabad High Court in Shiromani Sugar Mills A.I.R 1946 F.C 16 (Supra).

30. In the result, the application fails and is dismissed with costs. I assess the costs at Rs. 150.

31. Khosla, J.:— I agree.

32. Application dismissed.