ORDER : Application, by the Official Liquidators of the Hanuman Bank Ltd., Tanjore, under Ss. 45-A and 45-B of the Banking Companies Act for permission to sue under O. 1, R. 8, C.P.C., on behalf of all the creditors of Dewan Bahadur N. Swaminatha Iyer and his estate for a declaration that the release deed executed by Dewan Bahadur N. Swaminatha Iyer dated 27-7-1945 is void against the Hanuman Bank Ltd. (in liquidation) and all other creditors and for directing the respondents, who-are the sons of the late Dewan Bahadur N. Swaminatha Iyer, to compensate the Hanuman Bank Ltd., (in liquidation) in respect of the losses caused by the acts of misfeasance anti-breach of trust committed by their father to the extent of Rs. 14,08,647, and for costs.

2. The Hanuman Bank Ltd., Tanjore was-wound up on a creditor's petition dated 26-7-1947 by an order passed by this court on 5-11-1947. Messrs. Brahmayya and Co., have been appointed Official Liquidators by an order of this court dated 12-1-1948. The Official Liquidators tiled Application No. 2826 of 1950 under Section 235 of the Companies Act of 1913, against the directors, auditor and officers of the company to make good or contribute the amounts claimed in that application in respect of acts of misfeasance, misapplication and breach of trust. This court held that the members of the managing committee were liable to pay compensation to the Bank for the losses sustained by it by the misappropriation and improper loans and advances and discounting of cheques and bills and by illegal declaration of dividends out of capital and the members of the managing committee were made liable for varying sums. But as Dewan Bahadur N. Swaminatha Iyer, the President of the Bank and one of the members of the Managing committee, died on 16-8-1959, while the arguments on the application were coming to an end, this court held on the strength of the decision in Peerdan Juharmal Bank, in re, 1958-2 Mad LJ 167 : (AIR 1958 Mad 683), that the proceedings cannot be continued after his death and his liability cannot be enforced against his legal representatives in the same proceedings. Hence the present Company Appn. No. 217 of 1963, has been filed against the respondents, who are the sons of Dewan Bahadur N. Swaminatha Iyer.

3. The respondents have raised several objections to the maintainability of the present application in their counter. Some of the objections are in the nature of preliminary objections, while some others such as res judicata, limitation etc, could be legitimately decided as preliminary issues. If the preliminary objections and issues are not upheld, the application has to be disposed of on merits after taking evidence.

4. The claims made in this application fall under the following three heads. The first claim is to recover Rs. 11, 12, 947, made up of several items of loans and advances, described sin schedule 1 to the report of the Official Liquidators, made from the head office and branches of the Bank without obtaining any security and in total disregard of the rules and regulations of the Bank with the result that they have become irrecoverable and totally cost to the Bank. The second claim is in respect of misapplication of the funds of the Bank to the tune of Rs. 2,05,000, for the purchase of coffee estates in the name of Coorg 'Coffee Plantations Ltd. of which Dewan Bahadur N. Swaminatha Iyer was the President. The third and last claim is in respect of a sum of Rs. 90,700 representing the Josses sustained by the bank by reason of declaration of dividends out of capital by the Board of Directors.

5. The present application has been filed under Ss. 45-A and 45-B of the Banking Companies Act. I entertained some doubt whether the Banking Companies Act which came into force on 18-3-1949, could apply to the Hanuman Bank Ltd. in liquidation in respect of which the winding up petition had been filed even on 26-7-1947. In Jwala Prasad v. Official Liquidator, Jwala Bank Ltd. Allahabad, AIR 1