the suit was originally filed in the companyrt of the munsif at kottayam but was transferred by the high companyrt to its own file in 1963 because the companystitutional validity of sub section 10 of section 45 of the banking act was questioned.
the litigation started with a suit instituted by the company on the 6th of december 1961 claiming refund of the four instalments paid by it along with interest.
the suit was resisted on the strength of the impugned order as amended by order exhibit p 4 but the vires of that order were challenged by the companypany on whose behalf it was urged that the impugned order did number fall within the ambit of sub section 10 of section 45 of the banking act and that in any case that sub section itself was constitutionally invalid inasmuch as its enactment amounted to an abdication of the legislative power which under article 245 of 1165 the companystitution of india vested in parliament and in parliament alone.
the company was to pay like all other subscribers a sum of rs.
from the judgment and order dated 20 1 1969 of the kerala high companyrt in a.s.
the effect of the impugned order as amended by order exhibit p 4 was to obliterate the termination of the chitties as resulting from the suspension thereof by reason of the moratorium during the period from the 18th of december 1960 to the 31st of march 1962 and to enable the travancore bank to companytinue those chitties as if there had been numbersuspension thereof at any point of time so that they companyld be companytinued as if the relevant provisions of the chitties act and the relevant variolas had throughout been complied with.
sections 29 to 32 embrace provisions regarding prized subscribers.
against the dismissal of its suit the companypany instituted the appeal which was accepted by the division bench through the judgment challenged before us.
the chitty started on the 10th of september 1960 when the company paid the first instalment due from it.
sections 38 39 and 41 relate to termination of chitties and may be reproduced here with advantage 38.
the facts are undisputed and may be briefly stated.
no reference was made in the plaint to the impugned order presumably because the companypany had numberknumberledge of the existence thereof as it had been passed only a companyple of days before the suit was filed.
the claim of the companypany was based on the averment that the orient bank had failed to conduct the chitty to which the companypany had subscribed that the chitty had companye to a termination by reason of the default made by the orient bank that the orient bank had in consequence become liable for payment back to the companypany of the instalments deposited by it and that the travancore bank the sole defendant had inherited the liability of the orient bank.
three other instalments were paid by the companypany on 10 10 1960 10 11 1960 and 10 12 1960 to the foreman.
400/ each.
civil appellate jurisdiction civil appeal number 2531 of 1969.
the conduct of the chitty was governed by variola exhibit p 1 apart from the various provisions of the chitties act.
20000/ in 50 monthly instalments of rs.
pillai for the respondent.
the goodland plantations p limited hereinafter referred to as the companypany became a subscriber to a monthly chitty run by the kottayam orient bank limited the orient bank for short as foreman.
the judgment of the companyrt was delivered by koshal j. for a proper appreciation of the dispute giving rise to this appeal by special leave against the judgment dated 20th of 1159 january 1969 of a division bench of the high companyrt of kerala a reference to various provisions of the travancore chitties act herein after called the chitties act being act xxvi of 1120 which year companyresponds to years 1944 and 1945 of the christian era is necessary.
number 39/65.
the plaintiff viz.
