Decided on June 27,2005



Pratibha Upasani, - (1.) THIS miscellaneous appeal is filed by the appellant/original defendant No. 3 Kailash Kumar Agrawal being aggrieved by the order dated 26th March, 2004; passed by the learned Presiding Officer of D.R.T.-I, Mumbai on Exhibit No. 52 in Original Application No. 3558 of 2000. By the impugned order, the learned Presiding Officer made absolute earlier interim order passed by him restraining the defendant No. 3 the present appellant, his servants, agents, etc. from disposing of or alienating or transferring or encumbering or creating any right, title and interest in favour of any third party in respect of the whole or any part of the premises mentioned in the schedule viz. entire factory property situated at 202, Road No. 1, MIA Udaipur, Rajasthan and entire residential property situated at Badla Road, Opposite Mahavir Complex, Udaipur, Rajasthan. Being aggrieved, the present appeal is filed by the original defendant No. 3.
(2.) I have heard Mr. Anup Khaitan for the appellant and Mr. O.A. Das for the respondent No. 1 Bank. I have also gone through the proceedings and the earlier orders passed by the High Court and ad interim orders passed by the learned Presiding Officer, so also application made by the original defendant Nos. 4(a), 4(b) and 5, prayers and the grounds/reasons narrated in the said application, substantively granting of the prayers made in the application. The impugned order is, therefore, an order passed by the learned Presiding Officer on the application made by some of the defendants against another co-defendant, namely the present appellant, who was original defendant No. 3. The impugned order was not passed on the application made by the applicant Bank who has filed the original application. Normally and as a matter of principle, such application ought not to have been entertained. The RDDBFI Act, 1993 is enacted for the purpose of expeditious adjudication and recovery of debts due to Banks and financial institutions. It is not enacted for the purpose of adjudicating and resolving inter se disputes between the defendants or squabbles amongst the defendants themselves. However, considering history and peculiar facts of this matter, it cannot be said that the impugned order was erroneous. Chronological history is as follows: The respondent No. 1 Bank of India had filed suit being suit No. 2571 of 1991 in the High Court of Bombay calling upon the defendants to pay an alleged amount of Rs. 19, 39, 657.44 due under the cash credit hypothecation of stock facilities and Rs. 15, 36, 109.40 due under the cash credit of book debtors facilities and also called upon the guarantors to repay the alleged loan amount. The Bank took out notice of motion being notice of motion No. 2082 of 1991 for appointment of receiver for attachment and sale of hypothecated security. By order dated 18th September, 1991, the Court Receiver, High Court, Bombay was appointed for taking inventory of hypothecated security. The said notice of motion was made absolute and the receiver was to take possession of the hypothecated security. Thereafter, new directors of the respondent No. 2 company Alpana Textiles Processors filed notice of motion contending that the company was before the AAIFR. The said notice of motion was disposed of by order dated 20th June, 1995 whereby the receiver had to take possession of the hypothecated security on 3rd July, 1995. Thereafter, the Bank filed second notice of motion being notice of motion No. 2522 of 1996 for attachment of properties of defendant Nos. 3, 4(a), 4(b) and 5. The said notice of motion was withdrawn by the Bank with liberty to file a fresh notice of motion. Therefore, the suit came to be transferred from the Hon'ble High Court to the D.R.T. upon establishment of D.R.T. and was renumbered as Original Application No. 3558 of 2000. It was at this stage that the defendant Nos. 4(a), 4(b) and 5 came up with an application praying for injunction against other co-defendant, namely the defendant No. 3. The history therefore reveals that the Bank had made attempts to get receiver appointed, to attach and sale the hypothecated security, etc. but somehow that could not be materialized, firstly because the company was before the AAIFR and on the secondly occasion because the Bank had, for some reason, to withdraw the Notice of Motion taken out by them and thirdly because though liberty was granted to them to take out fresh notice of motion, it could not be taken out as the matter was transferred from High Court to D.R.T. and before the applicant Bank came out with an application of their own, application was made by the defendant Nos. 4(a), 4(b) and 5 for similar reliefs, for which liberty was granted to the Bank to come out with a fresh notice of motion when the matter was in the High Court. Thus, the Bank was about to come out with such an application in the D.R.T. Therefore, it cannot be said that reliefs were granted against the co-defendant on the application made by the other co-defendants, though the Bank had not come out with any application. The Bank supported the application taken out by the defendants because they wanted their security to be intact till the disposal of the original application,
(3.) FOR the above mentioned reasons, I do not find any reason to upturn the impugned order. In the application, the defendant Nos. 4(a), 4(b) and 5 have given categorical reasons for the reliefs prayed for. It was averred that the present appellant who has assets of above Rs. 45 lacs was about to dispose of the said property and that he had already informed the office of Rajasthan State Industrial Development and Investment Corporation that he was desirous of selling the said property, They also averred in the application that it was informed to them that the defendant No. 3 had already disposed of some of the immovable properties at Udaipur with a view to wind up his entire business at Udaipur. Thus, the impugned order was passed taking note of the above mentioned facts and for protecting interest of the applicant Bank as such. In view of this, I do not see any infirmity in the impugned order. Hence, following order is passed: ORDER Misc. Appeal No. 191/2004 is dismissed.;

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