S.B.SINHA, J. - (1.) LEAVE granted.
(2.) INTERPRETATION of Sections 529 and 529-A of the Companies Act, 1956 is involved in this appeal, which arises out of a judgment and order dated 4/8/2004 passed by the High Court of Judicature at Allahabad in Special Appeal No.698 of 2002 affirming the judgment and order dated 24/5/2002 passed by a learned Singh Judge of the said Court. The appellant herein is a Banking Company. It, along with Industrial Finance Corporation of India (IFCI) and Industrial Development Bank of India (IDBI), advanced the following amounts by way of loan to Respondent No.1 with a view to give financial assistance to it in setting up a plant for manufacture of leather boards : a) IDBI Rupee Term Loans of Rs.193.2 lacs and Foreign Currency loan of Italian Lira 1380900,000. b) IFCI Rupee Term Loans of Rs. 196.74 lacs, Central Investment subsidy of Rs.25 lacs and Foreign Currency loan of DM 2127,565. c) ICICI Rupee Term Loans of Rs.96.61 lacs and Foreign Currency loan of Italian Lira 1380900,000. The Punjab National Bank (PNB) also advanced a loan to the said Respondent for providing working capital funds. The 1st Respondent, in order to secure the amounts lent to it, created a first charge in favour of the appellant along with other financial institutions, i.e., Respondent No.3 (IFCI) and Respondent No.4 (IDBI) herein by way pf equitable mortgage by deposit of title deeds of its immovable property. A second charge was created in favour of PNB by way of constructive delivery of title deeds remaining in deposit with Respondent No.3 herein, clearly indicating that the charge in favour of the latter was subject and subservient to charges in favour of IFCI, IDBI and ICICI.
(3.) ON an application for winding up of the 1 st Respondent made before the High Court of Judicature at Allahabad, an order was passed on 16-12-1993 directing its winding up whereupon an Official Liquidator was appointed. The borrowing facilities of the said Respondent had been terminated. A suit for recovery of the credited sum was filed by the appellant along with the Respondent Nos.3 and 4 herein against the 1st Respondent in the High Court of Judicature at Bombay, which was numbered as Suit No.2789/1995. The said suit was thereafter transferred to the Debt Recovery Tribunal, Bombay. Recovery proceedings are admittedly pending adjudication. The Official Liquidator was one of the defendants. Liberty was granted by the Debt Recovery Tribunal to the appellant herein and the other respondents to obtain permission of the Company Court, i.e., High Court of Judicature at Allahabad to continue the prosecution of the said suit. Thereupon, an application under Section 446 of the Companies Act, 1956 was filed by the plaintiffs in the said suit stating that they were Secured Creditors and had decided to remain outside the winding up proceedings being desirous of realizing the Security in the suit. The permission to continue the proceedings in the said Suit No.2789/95 was granted by the High Court of Judicature at Allahabad on 30-8-1995. In the said suit, however, the Respondent No.2 herein, PNB, was not impleaded as a party.;