Decided on March 03,2004



D.C.Thakur, - (1.) THE claim application filed on October 15, 1996 by the applicant Bank against the six defendants has been, after the exhaust of all the procedural steps necessary for the disposal of a summary case like this, taken up by this Tribunal for its consideration and adjudication of the issue that has necessarily been framed in view of a set of the relevant facts and circumstances directly involved therein whether the applicant Bank has been entitled to the specific relief like Rs. 55,24,929.88 p. together with further interest at the rate of sixteen per cent per annum in respect of Cash Credit (Bills) Account and Old Stock Cash Credit Account from September 26, 1996 till realisation; to be realised and recovered from the defendant Nos. 1 to 5. It may be necessarily asked that what are the reasons being responsible for keeping the defendant No. 6 outside the ambit of the above liability, when the aforesaid issue has been framed for a decision to be given thereupon. In reply, the following may be said: THE learned Advocate, appearing for the applicant Bank has raised, on Wednesday, August 20, 2003, no claim or relief against the defendant No. 6. Secondly, it appears from the application of the applicant Bank (in particular, para 29 at page 26 of the said application) that the applicant Bank has been heard in saying the following : "THE respondent No. 1 also obtained credit facilities from the respondent No. 6 West Bengal Financial Corporation and therefore the applicant is required to be decided in presence of the Proforma Respondent No. 6." Thirdly, this Tribunal has also come to know, after a careful examination of the written statement filed on March 19, 1997, on behalf of the said defendant that it has been pleased at the relevant point of time to grant and give a term loan to the defendant Nos. 1 to 5 for a sum of Rs. 19,02,970.92 p, for the very purpose of setting up a company at Kalyani Industrial Estate, West Bengal and also an Industrial Estate at Bonhooghly, Kolkata-700038, after all the fixed assets of the company have been mortgaged and/or hypothecated with the said defendant by way of the first charge. As a result of the failure by the defendants to pay as per the terms of the schedule of the payment of loan, the total outstanding has taken the figure of a huge amount as on February 28, 1997, which is being described below: JUDGEMENT_629_TLDR0_20040.htm
(2.) In the said written statement, particularly at para-16, the said defendant has categorically submitted that the applicant Bank has failed to make out the prima facie case in the said application and as such the same is liable to be dismissed with cost against the said defendant. Not only that, the said defendant has also raised a claim as of right in its favour that it is entitled to sell the mortgaged and hypothecated assets of the defendant No. by virtue of being the first charge holder. Such claim has been specifically set out at paragraph 15 of the written statement of itself. So far as the applicant Bank's claim to the aforementioned amount against the defendants Nos. 1 to 5 is concerned, it has become pertinent to make mention of the following factual background of the commercial relationship, inter se. The agreement for the grant of the financial facilities in the form of Stock Cash Credit Account and Clean Cash Credit Account to be granted to the defendant Nos. 1 to 5 was entered factually on or about November 15, 1986 with the applicant Bank. The said bipartite agreement was specifically meant for an amount of Rs. 11,77,000/- to be disbursed from the applicant Bank as the contracting party to the said defendants to carry out the manifold activities of themselves in the field of all types of industrial fasteners with a set of fifteen terms and conditions, originally incorporated into the said covenant. Amongst such terms and conditions, may be specifically mentioned that the goods, produce and merchandise, mentioned in the schedule thereto (meaning thereby the paragraph No. 1 of the said agreement for Cash Credit) would be necessarily deposited with the applicant Bank and would be placed in the possession of the said Bank as the contracting party. The stipulation No. 2, being the second paragraph of the said agreement, no doubt stood to create the absolute right and to vest the same in favour of the said Bank whether or not it would accept as security for the purpose of this agreement any goods, produce or merchandise from time-to-time offered to itself by the defendants as the borrower. More or less, the same absolute, vested right seems to appear from the language originally used in the third paragraph of the said agreement. In addition, the third paragraph lays down as follows. "......shall not be required to make advances exceeding in the aggregate with the interest thereon 85% of the market value of the goods produce and merchandise for the time being pledged but within the said limit..... " In the event of the said agreement be read as a whole, that instrument has undoubtedly appeared to create and vest the discretionary controlling position in favour of the applicant Bank. The said agreement was entered into by the above contracting parties freely and independently; thus affording to bid a farewell to the so called Rule of damdupat, as far as the corporate character of the defendant No. 1 and other ingredients of such contractual relationship are concerned.
(3.) THEREAFTER, in furtherance of the said agreement and in connection with a rehabilitation package scheme, the applicant Bank was pleased, on October 7, 1988, to sanction the Credit facility in a Stock Cash Credit Account, Clean Cash Credit Account, Clean Term Loan (Funded Interest) Account and Working Capital Term Loan (Rehabilitation) Account to the defendant No. 1; and the said defendant has availed itself of the said credit facilities against the hypothecation of stocks, raw materials, finished goods, goods under process, pledging of plant and machinery, hypothecation of book debts, both present and future. The said loan secured by the defendant No. 1 has also been founded on the personal guarantee of the defendant Nos. 2 to 5.;

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