Decided on July 21,2006



K.Gnanaprakasam, J. (Chairperson) - (1.) Kotak Mahindra Bank Ltd. filed an application before the D.R.T. to substitute themselves as applicant in the Original Application in the place of existing applicant, viz. I.C.I.C.I. Bank Ltd. and the same was allowed by the D.R.T. by order dated 2nd February, 2006. Aggrieved by the same, the appellant, who is the respondent No. 1 in the Original Application has preferred this miscellaneous appeal. I have heard the learned Advocate for the appellant and the respondents and also perused the appeal papers.
(2.) KOTAK Mahindra Bank Ltd., the respondent No. 1 herein, in the affidavit filed in support of the petition, has stated that the debt due to the respondent No. 2, namely I.C.I.C.I. Bank Ltd. from the appellant has been assigned to them, which was confirmed by the agreement dated 20th April, 2005 and as per the said agreement, the respondent No. 1 has become the full and absolute owner and the only person legally entitled to receive the debt due from the appellant with effect from 31st March, 2005, and therefore, sought the leave of the Tribunal to substitute themselves in the place of the respondents, in the Original Application proceedings. The appellant resisted the said petition on the ground that the alleged assignment is not legal. The debt in question being a loan secured by agricultural lands, the RDDBFI Act does not apply to the debt by virtue of Section 31(i) of SRFAESI Act, which specifically bars the application of the RDDBFI Act in respect of security interest created in agricultural lands. It is also contended that the respondent No. 1 has not produced the deed of assignment dated 31st March, 2005 and in the absence of the same, the assignment cannot at all be accepted. It is also further contended that the alleged deed of assignment is subject to stamp duty and registration, and it must be a valid one, and in the absence of the said document, it is not possible to come to the conclusion, that there was any valid assignment or not. But, however, D.R.T. allowed the petition.
(3.) THE learned Advocate for the respondents submitted that there were certain other proceedings between Kothari Industrial Corporation Ltd., the appellant herein and I.C.I.C.I. Ltd. in CS 204/2005 before the High Court of Bombay and judgment in that case was delivered on 6th July, 2005. As against the same, Kothari Industrial Corporation Ltd., preferred S.L.P. (Civil) No. 17992/2005 before the Supreme Court of India and in that matter as an application was taken out by Kotak Mahindra Bank Ltd. to substitute itself in the place of I.C.I.C.I. Ltd.. and the same was allowed by the Supreme Court by order dated 5th September, 2005. As such, the substitution of Kotak Mahindra Bank Ltd. in the place of I.C.I.C.I. Ltd. has already been permitted by the Supreme Court and the same cannot be further reopened and the appellant is precluded from constructive res judicata, and relied upon the case of Indira Bai Patel v. B.A. Patel .;

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