S. R. DAS C.J. - When I started taking up the liquidation matters as the Company Judge of this Court Ifound that there were pending a large number of applications or petitions by creditors of different banks working under different schemes sanctioned by this Court for payment of the installments that had fallen due under the scheme but not paid or for adjudicating upon their claim to priority as preferential creditors or for like reliefs. None of the banks, however, had actually gone into liquidations and none of the schemes had been sanctioned in course of winding up. These banks were and are going concerns but are now working under schemes sanctioned by the Court. Doubts arose in my mind as to whether, in such circumstances, the Court had any jurisdiction under the Indian Companies Act to entertain such summary applications by creditors on a mere petition to adjudicate upon their rights under the scheme or their claim that they are not bound by the scheme. On enquiry I was told that there was a clause in each of the schemes sanctioned by the Court authorising this Court to entertain such applications and that it had been the practice of the Court to do so. I was still dubious as to whether the requisite majority of the creditors and/or members of the company could, by inserting a clause in a scheme, confer jurisdiction on the Court which it did not otherwise possess or whether the Court itself by sanctioning such a scheme could usurp a jurisdiction not otherwise vested in it. In view of the prevailing practice of the Court which, I felt convinced, should not be lightly interfered with. I thought it right that this important question should be heard and decided by a larger Bench and accordingly the present Bench was constituted. We also thought fit to request the learned Advocate-General to give us his assistance as amicus curia which he has done in ample measure for which we are indeed indebted to him.

2. The first scheme to be sanctioned by this Court was the one relating to the New Bank of India, Limited. The scheme approved by the requisite majority of the members and creditors of that bank came up for final sanction before Achhru Ram, J. who was then the Company Judge. Paragraph 1 of the scheme as it emerged from the meetings was as follows:

"For the purposes of this scheme the word deposit includes Fixed Deposits, Banks own Cash Certificates Current Accounts, Deposits at Call, Savings Fund Accounts lying in Sundries, or in any other kind of Credit Accounts, Bank Drafts, Cash Orders, Pay Orders and documents of the like nature and amounts due to Bankers over and above the value of Government Securities lying with them against such deposits, after adjustment of loans as may be permissible under the law, if any, against any or all the deposits in the said accounts whether pledged specifically or not."

It will be noticed that the above definition of the word "deposit" was of extremely wide import. Certain classes of persons, who had purchased drafts issued by the bank in one of its branches on another of its branches, or who had to receive money from the bank in respect of hills entrusted with it for collection, claimed that they were not ordinary depositors but were really in the position of cestui que trust and as such entitled to payment in full in priority to ordinary depositors and creditors of the bank. These persons were naturally opposed to the scheme and particularly to the definition of the word "deposit" in para.1 of the scheme. To pacify them a clause was put in Para.3 of the scheme the material part of which was as follows:

"3. Notwithstanding any other provision in the scheme the following amounts shall be paid in full if they are obligatory to be paid under the law:

(a) * * * *

(b) * * * *

(c) * * * *

(d) The amount held by a competent Court to be payable in priority to other creditors."

The position was rather anomalous, for these persons came within the definition set forth in Para.1 and as such were bound