Prima Facie Case by Admissible Evidence is required to shift onus; absent it respondents need not be called to begin trial.

The note clarifies two legal points: first, interlocutory directions on procedural onus given during proceedings ordered for trial on evidence do not constitute a final "judgment" for purposes of appealability under the Letters Patent or parallel appeal provisions, and a statutory appeal provision limited to original proceedings under the banking statute does not extend to orders made in company-act instituted proceedings; consequently such orders are not appealable. Second, a statutory shift of burden to respondents requires that the applicant have made out a prima facie case by legally admissible evidence rather than by pleadings or supporting affidavits alone; absent such admissible evidence the onus does not shift.

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Issues: (i) Whether the order of Bachawat J. overruling the appellant's contention that under section 45H of the Banking Companies (Amendment) Act, 1953 the respondents must begin their case is appealable to this Court under clause 15 of the Letters Patent, section 202 of the Indian Companies Act, or section 45N of the Banking Companies (Amendment) Act, 1953; (ii) Whether, on the merits, the learned Judge was correct in holding that a prima facie case within the meaning of section 45H means a case made out by legally admissible evidence and that the appellant had not satisfied that condition precedent.

Issue (i): Whether the order is appealable under clause 15 of the Letters Patent, section 202 of the Indian Companies Act, or section 45N of the Banking Companies (Amendment) Act, 1953.

Analysis: The Court examined the scope of section 202 and held that it subjects appeals in winding up matters to the same conditions as appeals in the court's ordinary jurisdiction and is therefore co-extensive with clause 15 of the Letters Patent; applied the established test that a "judgment" under clause 15 is a decision which determines some right or liability and affects the merits. The impugned order merely decided a procedural question of onus in the course of proceedings already ordered for trial on evidence and did not determine any right or liability between the parties. The Court also analysed section 45N and concluded it applies only to orders made in civil proceedings under the Banking Companies Act itself (i.e., original claims under that Act) and does not confer a right of appeal in respect of orders made in proceedings instituted under section 235 of the Indian Companies Act.

Conclusion: The order is not a "judgment" within clause 15 and is not appealable under section 202 of the Indian Companies Act or under section 45N of the Banking Companies (Amendment) Act, 1953. The preliminary objection to maintainability succeeds.

Issue (ii): Whether section 45H requires that a prima facie case be "made out" by admissible evidence (as distinct from merely being disclosed in the petition and supporting materials) and whether the appellant had made out such a case.

Analysis: The Court interpreted section 45H as modifying the rule on onus by shifting the burden to respondents only where the applicant "makes out a prima facie case." The Court distinguished between "disclosing" a prima facie case (sufficient for admission) and "making out" a prima facie case (establishing it by legally admissible evidence). The Court noted practical consequences of permitting mid-trial orders shifting onus and observed that once proceedings have reached the stage of evidence (by orders for trial on evidence and by the appellant's subsequent conduct in filing affidavits and documents), an applicant cannot revert to relying solely on the petition and supporting materials to claim that the onus has shifted. The Court held that section 45H operates only when the condition precedent (making out a prima facie case by admissible evidence) is satisfied and that where the applicant chooses to rely on a portion of evidence to obtain an order, he does so at his risk.

Conclusion: Making out a prima facie case under section 45H requires establishment by legally admissible evidence; the appellant had not satisfied this condition precedent in the circumstances and the learned Judge rightly refused to call upon the respondents to begin their case. The appellant's contention on this point is rejected.

Final Conclusion: The appeal is not maintainable and, on the merits considered subsidiarily, the trial Judge correctly held that the appellant had not made out a prima facie case under section 45H by admissible evidence; consequently the appeal is dismissed.

Ratio Decidendi: Section 45H of the Banking Companies (Amendment) Act, 1953 shifts the burden to respondents only where the applicant has "made out" a prima facie case by legally admissible evidence; interlocutory procedural directions on onus in proceedings already ordered for trial on evidence do not constitute a "judgment" appealable under clause 15 of the Letters Patent or under section 202 of the Indian Companies Act, and section 45N applies only to orders in civil proceedings under the Banking Companies Act itself.

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