Decided on November 09,2005



P.K.Deb, - (1.) RESPONDENT No. 1 Sterling Malt and Food (P) Ltd. is a Private Company registered under Indian Companies Act having its registered office at New Delhi and Factory at District Moraina, Madhya Pradesh. It was manufacturing malts. Other respondents are its Directors and guarantors. The loan was taken by the company time-to-time and enhancement was also made and ultimately loan account of the respondents became sticky, when an amount of Rs. 23.00 lakh and odd as mentioned above had remained unrecovered. A suit was filed before the Court of District Judge, Gwalior, M.P. for recovery of said sum together with interest pendente lite and future and also for costs and the same suit was registered as Civil Suit No. 6-B/87. The respondents were not taking proper steps in that suit and ultimately when the Tribunal was set up, then the said suit was transferred to the DRT, Jabalpur and was registered as T.A. No. 387/98. It should be mentioned here that against the same respondents for some other loans, another Civil Suit was filed by the appellant Bank before the District Judge, Moraina, Madhya Pradesh for recovery of Rs. 3,84,29,6707- together with interest and cost. The Moraina suit was compromised between the parties on filing of a joint petition by the appellant and the respondents and on the basis of such joint compromise petition, a compromise decree was passed by order dated 25th October, 1991 and on the basis of that decree, an Execution Case was filed. On establishment of the Tribunal, such Execution Case being T.A. Execution No. 154/98 was also transferred to the DRT, Jabalpur. Both matters were taken side by side by the learned Tribunal at Jabalpur and held on the basis of terms and conditions enumerated in the joint compromise petition in the suit at Moraina. By that compromise practically the present recovery proceedings had also been compromised and as such the present case is not maintainable, hence dismissed. Thus the dismissal order has been recorded not on merits but on the ground of compromise being effected in another suit/proceeding.
(2.) Various grounds have been taken by the appellant Bank attacking the impugned judgment and order. Practically, the present proceeding was not being contested in their proper sense, rather some objection was filed in T.A. Execution No. 154/98 and such objection filed by the respondents was also requested to be treated as their objection in the present suit/proceeding. The plea was that in view of the terms of compromise in the Moraina Court, the present suit should also be construed as compromised and as such not maintainable. The contention of the appellant is that there was no such compromise in the present proceeding as no compromise petition filed in the present proceeding either at Civil Court where it was pending at first or before the Tribunal where it has been transferred. It was further contended that the suit of Rs. 3.00 crores and odd was compromised in the Moraina Court for a sum of Rs. 1.00 crore and odd to be paid by two instalments and if the instalments failed, then the decree should be construed as of the whole claim as made by the Bank before the Moraina Court. The terms of the compromise, which have been relied on, have been challenged both on ground of law and on fact. It should be mentioned here that in view of the compromise being arrived at, no payment has yet been made from the side of the respondents and the Execution Case No. T.A. 154/98 remains pending and dues being unrecovered. According to the appellant Bank, when recovery has not been made as per the terms of the compromise, then the whole of the claims before the Moraina Court and also the present proceeding which was previously pending before Gwalior Court remain as it is to be paid by the respondents.
(3.) ON the other hand, learned Counsel for the respondents has very much supported the judgment and order of the DRT, Jabalpur by referring to Clause 10 of the joint compromise petition, which was made a part of the compromise decree passed by Moraina Court in Civil Suit No. 26-A/89.;

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