Decided on August 23,2005



Pratibha Upasani, - (1.) THIS substantive appeal is filed by the appellants/original defendant No. 13 Indian Bank being aggrieved by the judgment and order dated 8th November, 2002 passed by the learned Presiding Officer of the D.R.T.-1, Mumbai in Original Application No. 1008/2000 (High Court Suit No. 4627 /1997). By the impugned judgment and order, the learned Presiding Officer allowed the Original Application with costs in favour of the original applicants Dena Bank and ordered the defendant Nos. 1 to 5 to jointly and severally pay to the applicant Bank a sum of Rs. 13,34,53,308.78 with future interest at the rate of 18.25% per annum with quarterly rests from the date of filing of the suit in the High Court till realization of the said amount. The learned Presiding Officer also ordered that the hypothecated goods and book debts described in Exhibits "L" & "I" to the Original Application be sold/ realized and net sale proceeds/realization thereof be paid to the applicant Bank namely Dena Bank. He also gave certain consequential declarations and directed issuance of recovery certificate in the above stated terms. The appellant Bank is aggrieved because it is their case that the hypothecated goods and book debts described in Exhibits "L" & "I" to the Original Application which were ordered to be sold/realized and net sale proceeds ought to have been ordered to be paid to the applicant Bank alone. According to them, they had pari passu charge over the hypothecated goods and book debts along with the other defendants. Therefore, their grievance is that it should not have been held by the learned Presiding Officer that the applicants Dena Bank alone are entitled to the net sale proceeds of the hypothecated goods and book debts. Hence, this appeal.
(2.) I have heard Mr. Rishabh Shah for the appellant Bank and Mr. K.S. Rajesh for the respondent No. 1 Bank. 1 have also heard Mr. Laichandani, who is appearing for the respondent No. 17 Allahabad Bank and Mrs, Surve for the respondent No. 19 Vijaya Bank. Allahabad Bank was supporting Dena Bank/original applicant while Vijaya Bank was not supporting the case of the Dena Bank. Having gone through the proceedings and having heard both the sides, I find force In the contentions of Mr. K.S. Rajesh, that there could not be any adjudication of the claim of the defendant No, 13 Indian lank In the Original Application filed by his clients i.e. Dena Bank. He further pointed out that the appellants had and separately filed Original Application in D.R.T., Chennai, which is pencmg and that the appellants' claim will be adjudicated by D.R.T., Chennai. This fact is not denied by Mr. Rishabh Shah, who is appearing for the appellant Indian Bank. It appears that the defendant No. 1 has hypothecated the goods in favour of Dena Bank and thereafter in favour of Indian Bank also. There is already certificate issued in favour of Dena Bank, but Original Application filed by the Indian Bank against the very same defendants is pending in the D.R.T., Chennai and that claim is yet to be adjudicated. Therefore, the only course, which is left to the appellants, is to put its claim after decision of their Original Application before the Recovery Officer in the recovery proceedings of Dena Bank. Adjudication of the claim is necessary and after their claim is adjudicated, Indian Bank can certainly appear before the Recovery Officer and place its claim before him. The learned Presiding Officer in the present Original Application is not supposed to adjudicate the claim of the defendant No. 13, who is the present appellant. In view of the aforesaid discussion, I find no merit in this appeal, which deserves to be dismissed. Accordingly, following order is passed: ORDER Appeal No. 99/2003 is dismissed ;

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