cannot impose additional duties upon depository banks without statutory or case law justification. None have been cited or found.
The Court finds, therefore, that the duties of depository banks to the Bankruptcy Court, as covered by the Order of designation, the Bankruptcy Act, and the orders and regulations promulgated thereunder, do not extend beyond the accounts of receivers or trustees in bankruptcy. In re Dialogue, 215 F. 462 (D.N.J.1914). Since under the agreed facts, no claim for relief has been stated, the banks' motion to dismiss must be granted. Petitioner's defect cannot be cured by amendment since no Order of this Court was violated and petitioner's claim is based upon such an Order.
Even assuming arguendo that the Order of designation signed by Judge Lord applies to Auctioneers' funds in the alleged contemnor banks, the petitioner has still failed to state a claim upon which relief may be granted. Civil contempt proceedings are usually instituted when depository banks fail to honor turn-over orders for funds in their possession which clearly belong to the bankruptcy estate. May v. Henderson, 268 U.S. 111, 45 S. Ct. 456, 69 L. Ed. 870 (1925); 2 Collier on Bankruptcy, Section 24.22 (14th ed. 1966), Annot., 92 L. Ed. 502. In such cases, the turn-over order is clear and specific and the non-compliance with that order is wilful and deliberate. If the property of the bankrupt is wrongfully withheld by any person, the trustee may seek an order for its delivery. Once the order is granted, the wilful non-compliance with that order is contempt. Carter v. Fleece, 288 F. 193 (6 Cir.1923).
The Orders of the Court designating these banks as depositories for moneys of bankrupt estates directed only that sufficient security be maintained to cover all money of bankrupt estates. The banks have admittedly complied with that direction. If the Court extends the scope and direction of the Order of designation to petitioner's requested breadth, I still am faced with the banks' good faith belief that the standing Order did not embrace the matter charged. Under such circumstances, it would be indeed hard to find that the violation of the Order was wilful and deliberate. Such a finding is a necessary requisite in civil contempt proceedings. When orders lack certainty as to what is prohibited or directed, it would be unreasonable to impose a contempt citation upon the transgressors. See In re Rubin, 378 F.2d 104 (3 Cir.1967). The proper procedure for determining ownership, possession or title to bankrupt property is in the form of summary or plenary proceedings, not contempt proceedings. In re Rubin, supra, at 109.
Under the facts as stated, the core of this dispute lies in the possession or ownership of Auctioneers' accounts. Contempt proceedings are not available to the petitioner. The Court's decision to dismiss does not reach the merits of whether the banks unlawfully appropriated money or allowed money to be garnished from their account, when they knew, in fact, that all or part were funds of bankruptcy estates. All the Court is saying is that as a matter of law, the contempt power of this Court cannot be utilized in this case because the Order on which it rests does not apply to the facts before me.
Therefore, the banks' motions to dismiss, pursuant to Rule 12(b)(6) F.R.C.P., are granted, without prejudice to petitioner's right to attempt in other proceedings to recover its loss and it is so ordered.