Decided on December 20,2007



R.S.Tripathi, - (1.) THIS is an appeal directed against the judgment dated the 9th November, 2006 passed by D.R.T., Lucknow in Transfer Application Case No. 30 of 2002 issuing a recovery certificate against defendant Nos. 1, 2/1 to 2/5, 3, 4/1, 5 and 6 for an amount of Rs. 40,44,051.55 together with pendente lite and future interest till the realization of total amount.
(2.) Briefly stated the facts of the present appeal are that a application for recovery of Rs. 40,44,051.55 together with interest was filed by the respondent United Commercial Bank against the present appellant and others before the Civil Judge, Mallihabad, Lucknow wherefrom it was transferred and registered at D.R.T., Lucknow as T.A. 30 of 2002. Further facts in short of the case are that Sri Nawal Kishore Vaid (now dead) was the Managing Director of the defendant No. 1 Keshaw Vanaspati Ltd. and defendant Nos. 3 and 4 (now dead) were the Directors of the said defendant No. 1 along with defendant No. 6 as one of the Directors. The Bank advanced the amount in question on the guarantee furnished by defendant Nos. 1 to 6 to the tune of Rs. 28.00 lacs. For above advancement of amount, the guarantee was also furnished by one Chemical Construction Company of Madras (supplier) issuing guarantee of the due payment of Usance Bills to be drawn by the supplier in respect of the cost price. There were certain terms and conditions for the above payment. The defendant No. 1 failed to pay the amount in question. Consequently the supplier demanded for the payment and an amount of Rs. 22,23,520.00 was paid by the Bank till 29th April, 1976. The Bank placed a demand on 22nd May, 1975, 2nd September, 1975 with the defendant Nos. 1 to 6. In the meantime on 5th December, 1973, 19th September, 1974, 15th March, 1975, 19th September, 1975 and 13th March, 1976 the defendant No. 7 on the request of defendant No. 1 allowed the loan of Rs. 18,10,264.00 to defendant No. 1 against the security of mortgage over the said immovable properties which are detailed in para 8 of the plaint as well as over the plant and machinery mentioned in the para 8-B of the plaint executing registered deed of hypothecation dated 18th February, 1971 executed by the defendant No. 1 in favour of defendant No. 7.
(3.) THE Bank, defendant No. 1 and defendant No. 7 on 23rd May, 1973 entered into a tripartite agreement to allow a parri passu charge on the said mortgaged properties which were given in para 8 of the plaint. THE Bank on the request of the defendants 1 to 6 had further agreed to allow a cash credit in the form of draft facilities to the extent of Rs. 15 lacs to defendant No. 1 on certain rate of interest with detailed terms and conditions just provided in the agreement. Necessary documents were got executed, the Bank asked for the amount due but it was not paid, thereafter above suit was filed for recovery.;

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