STATE BANK OF SAURASHTRA Vs. SIHOR ROLLING MILL PVT LTD
LAWS(DR)-2005-8-21
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on August 09,2005

Appellant
VERSUS
Respondents

JUDGEMENT

Pratibha Upasani, - (1.) THIS substantive appeal is filed by the appellant/original applicant, State Bank of Saurashtra being aggrieved by the judgment and order dated 18th February, 2003 passed by the learned Presiding Officer of the D.R.T., Ahmedabad in Original Application No. 191 of 1998. By the impugned order, the learned Presiding Officer allowed claim of the Bank and ordered defendant Nos. 1, 2, 5 and 7 to pay jointly and severally a sum of Rs. 32,83,825/- with costs and interest at the rate of 15 per cent, per annum from the date of filing of the Original Application till realisation. The learned Presiding Officer however dismissed claim of the Bank against the defendant Nos. 3, 4 and 6. The Bank felt aggrieved by this part of the order whereby the Bank's claim against the defendant Nos. 3, 4 and 6 was dismissed. Hence, the present appeal to that limited extent.
(2.) I have heard Mr. Akbar Rizvi for the appellant Bank, Ms. Jariwala for the respondent No. 3 and Mr. Panesar for the respondent Nos. 4 and 6. I have also gone through the proceedings including the impugned judgment and order and in my view, the learned Presiding Officer has correctly passed the order. The applicant Bank had made claim against the defendant Nos. 2 to 7 on the basis of individual guarantees executed by them in their personal capacity. In addition, the defendant Nos. 5, 6 and 7 were also sued on the basis of mortgage of the immovable properties allegedly created by them in favour of the applicant Bank, as was pleaded by the Bank in the Original Application. Case of the defendant No. 3 was that he resigned from the directorship of the defendant No. 1 Sihor Rolling Mill Pvt. Ltd. with effect from 11th February, 1995. Case of the defendant No. 4 was that he joined as director on 11th February, 1995 and therefore, he could not be held liable under the guarantee agreement alleged to have been executed on 1st June, 1994. It was also the case of the defendant Nos. 3, 4 and 6 that they had not signed any revival letters dated 17th February, 1997 and the applicant Bank had illegally sued them.
(3.) HAVING heard all the Advocates and having gone through the proceedings, it appears that indeed the Bank ought not to have joined these persons as defendants. In fact, the Bank had not issued demand notice dated 11th February, 1998 to the defendant No. 3. This fact shows that the Bank itself was convinced that it had no case against the defendant No. 3. The defendant No. 3 had resigned from the directorship of the defendant No. 1 company on 11th February, 1995 and Form No. 32 was filed before the Registrar of Companies. Thereafter, the defendant No. 3 had not signed any document or guarantee or even the resolution of the defendant No. 1 company did not envisage of providing guarantee of the defendant No. 3. As already observed, no demand notice was sent to the defendant No. 3 by the Bank and therefore the claim against the defendant No. 3 was not maintainable. The Original Application therefore rightly came to be dismissed by the learned Presiding Officer against the defendant No. 3. The defendant Nos. 4 and 6 also were sued as guarantors. The Bank failed to prove their guarantee agreements. Therefore, simply on the basis of signatures on the alleged revival letters dated 17th February, 1994, the applicant Bank cannot fasten any liability on the defendant Nos. 4 to 6 also. What is pertinent to note is that the guarantees given by these defendants were not invoked in terms of Clause 13 of the guarantee agreements and therefore there was no cause of action against these defendants. The learned Presiding Officer, therefore, rightly dismissed the Original Application as against these defendants also. Moreover, the mortgaged property of the defendant No. 6 had already been released on 9th January, 1998 by the Bank and therefore, the defendant No. 6 cannot be sued as mortgagor. Thus, in view of the aforesaid discussion, it has to be stated that the claim against the defendant Nos. 3,4 and 6 was not proved and they were rightly discharged. The appeal, therefore, fails. Accordingly, following order is passed. ORDER Appeal No. 139 of 2003 is dismissed.;


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