Decided on September 05,2007



R.S. Tripathi, J. (Chairperson) - (1.) BY filing Appeal No. R -735/06 the order dated 5th October, 2006 passed by the D.R.T., Lucknow in Original Application No. 41/05 is under challenge at the instance of Modi Industries Limited and others, appellant -defendants (hereinafter to be called as defendants in this appeal for the purposes of this judgment). By order dated 5th October. 2006, learned D.R.T. observed that vide order dated 2nd August, 2002 passed by B.I.F.R. the required permission under Section 22(a) of S.I.C.A. has been granted to the Bank applicant -respondent (hereinafter to be denoted as plaintiff in this appeal for this judgment). In this appeal the learned D.R.T. directed to continue the proceedings of Original Application No. 41/05 declining to stay the proceedings as prayed by the defendants, who had also prayed for dismissal of the suit for want of permission under Section 22(1) of the S.I.C.A. In Appeal No. R -769/07 feeling aggrieved by an order dated 4th December, 2006 passed by the D.R.T., Lucknow in T. A. No. 278/ 02 appellant -defendants (to be called as defendants in this judgment henceforth). The learned D.R.T. on an application of the defendants moved under Section 22(1) of the S.I.C.A. observed that the reference of the company having been registered with B.I.F.R., the proceedings of T.A. No. 278/02 shall remain stayed against the principal borrower, whereas the same will continue against the guarantors.
(2.) AS the controversy raised in both the appeals relate to scope and ambit of Section 22(1) of S.I.C.A. in respect of filing/continuing suits for recovery against the borrower and guarantors, the above two appeals requiring decision on a common point of controversy, these are being decided together by this common judgment. Considering the scope of questions raised and required to be decided in above two appeals in short, the history of both these cases is being given as under: In Original Application No. 41/05 the Bank plaintiff initiated the suit for recovery against the borrower company and guarantors in the year 2005, whereas defendant -company borrower preferred a reference under the provisions of S.I.C.A. and this reference was registered even then according to the company defendant, the Bank plaintiff continued the proceedings of recovery without any prior permission as required under Section 22( 1) of the S.I.C.A. for filing such suit. Therefore, company defendant by moving an application before the D.R.T. for dismissal of Original Application requested for dismissal of the suit. This application of the defendant -company was opposed by the plaintiff Bank before the D.R.T. contending that the required permission under Section 22(1) of the S.I.C.A. to continue the suit, has been granted vide order dated 20th August, 2002 of B.I.F.R. and application for modification of above order dated 20th August, 2002 according to the Bank plaintiff had been moved and that is still pending. The copy of the order dated 20th August, 2002 has been filed along with copy of the application for modification of that order moved on behalf of the Bank. Learned D.R.T. by passing the impugned order on 5th October, 2006 disposed of above controversy, hence this appeal.
(3.) IN T.A. No. 278/02 an application under Section 22(1) of the S.I.C.A. was moved on behalf of defendant company Eggro Paper Moult Limited praying for staying the proceedings of T.A. against the borrower defendant -company as well as against any of its guarantee in respect of loan in question for want of mandatory permission under Section 22(1) of S.I.C.A. for initiating the proceedings of recovery filed in the form of T.A. No. 278/02. Plaintiff -Bank opposed above application filing an objection wherein it was contended that the suit was filed on 13th March, 2000 the reference with B.I.F.R. had not been registered. Learned D.R.T. by disposing of above application vide order dated 4th December, 2006 decided above application moved in T.A. No. 278/02.;

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