Decided on February 21,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the order dated 19th May, 2005 passed by the learned Presiding Officer, D.R.T. Allahabad in T.A. No. 112/2000 by which the application filed by the appellant Bank under Order 38 Rule 5 of the CPC has been disposed of by passing an order under Order 38 Rule 6 of the CPC. The appellant had filed original suit before the Civil Judge, Allahabad numbering Original Application No. 539/93 for realization of Rs. 1,41,74,528.37 together with interest future and pendente lite and also with cost. In the matured stage of the suit when evidence had already been adduced from the side of the appellant Bank, D.R.T. was set up and the case was transferred to D.R.T., Jabalpur and then again retransferred to D.R.T., Allahabad and was numbered as T.A. No. 112/2000. During the pendency of the suit before the Civil Judge, Allahabad, there was a petition filed in the year 2002 under Order 38 Rule 5 of the CPC from the side of the appellant and there was order for attachment of the property of respondent No. 3 Smt.Shalini Asha Chopra regarding her mortgaged property situated at 17/23, Kamla Nehru Road, Allahabad, if no proper security had been filed from the side of the appellant No. 3. In consequence of such order appellant No. 3 had filed securities regarding some immovable properties, but no order was passed either of accepting of the security or rejecting the same. Then again a petition was filed before the D.R.T., Allahabad under Order 38 Rule 5 of the CPC for attaching the mortgaged property as mentioned above on the ground that respondent No. 3 has already disposed of some portion of the mortgaged properties and also made some agreement to sell other properties within the mortgaged properties and order was passed by the learned Presiding Officer, D.R.T., Allahabad on 31th December, 2004 granting ex parte attachment and also issued notice for show cause. Against that order the respondents came up before this Tribunal in an appeal, but such appeal was not entertained and the learned Tribunal was asked to decide on show-cause within a time-frame. Then the show-cause was filed by the respondent No. 3 and then the matter was heard and the impugned order dated 19th May, 2005 has been passed, wherein it was observed by discussion of all the events, which had happened earlier and also some developments on the writ petitions being filed before the Hon'ble Allahabad High Court and the interim orders thereof and then ordered that the interim attachment made earlier on 3rd January, 2005 shall stand vacated, if the respondent No. 3 file affidavit to the effect that she was not going to dispose of the property situated in 17/23, Kamla Nehru Road, Allahabad. It was further ordered that if no such affidavit was filed, then the attachment order passed on 3rd January, 2005 shall remain in vogue. Against that order the present appeal has been preferred.
(2.) The contention of the appellant is that the respondents are making all attempts to drain away the public money and the security given by the respondent No. 3 are being destroyed by making so many transfers to the detriment of the claim of the appellant Bank. It is further contended that the restraint towards taking coercive steps had been passed against the appellant by the Hon'ble High Court regarding the appellant No. 1 Private Limited Company and not the respondent No. 3 and the learned Tribunal has committed error in construing the effect of such coercive steps as passed by the Hon'ble High Court. On the other hand Mr. Kushal Kant appearing for and on behalf of the respondent has submitted that practically there is little scope of passing any attachment order with regard to the mortgaged property as charge has already been created on the mortgaged property, when the same have been equitably mortgaged and so even if any transfer is made, the same would be subject to the mortgage and purchasers will get the interest over the property only subject to the mortgage itself and also the respondent No. 3 in view of the impugned order passed had already submitted her affidavit swearing therein not to transfer the mortgaged properties situated in 17/23, Kamla Nehru Road, Allahabad. On the basis of the arguments placed by the learned Counsel for both the parties, I have perused the impugned order and also the materials on record. It is the discretionary power of the Court or the Tribunal to pass attachment order under Order 38, Rules 5 and 6 of the CPC and that discretion becomes more stringent, when the property, on which attachment is sought, has already been mortgaged in favour of the Bank. Practically by attachment the interest of the party claiming is required to be protected and security had already been created, when the property have been equitably mortgaged. Further security might not arise unless any emergent position arrives at. In the present case already in the Civil Court in respect of the prayer for attachment securities have been given by the respondent No. 3, although according to the Bank such securities are not of much avail, when those properties had only been taken over by the State, but then again in lieu of attachment, affidavit has been taken from the side of the respondent No. 3 making her liable, if any transfer is made in violation of the swearing in the affidavit. Moreover, I find that in the present case the final adjudication stage had already been arrived at in the year 2002, hut dilatory tactics are there from the side of the respondent and by such tactics, they could be successful in non-adjudicating the case for the last 13 years. There might be some sort of laches on part of the appellant also, but the main burden remains with the respondents. If in the statement of accounts some entry has been challenged from the side of the respondent and if such controversy cannot be set at rest from the side of the appellant, then they will suffer but by that alone it cannot be asked time and again from the side of the respondent to give direction to the appellant to produce further accounts and explanation thereof. I do not find that the learned Tribunal has committed any error in passing the conditional order passed regarding attachment in the impugned order dated 19th May, 2005, wherein interference by this Court is necessary, but this much should be said that if the whole case i.e. T.A. No. 112/2000 is not being disposed of at an early date, then the whole object of the RDDBFI Act would become frustrated as already 13 years have passed making the claim pending from one Court to another Tribunal.
(3.) IN the result, the appeal is rejected, but it is directed that T.A. No. 112/2000 must be disposed of finally within three months next positively without giving any indulgence of adjournments to either of the parties on flimsy ground. The time-frame as directed should be maintained judiciously.;

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