PRASENJIT MANDAL,J - (1.) CHALLENGE is to the Order dated April 30, 2007 passed by the learned Chair Person, Debts Recovery Appellate Tribunal, Kolkata in Appeal No.43 of 2005 thereby affirming an order of rejection of an application filed by the two defendants, namely, defendant No.4 and 5 for deletion their names from the said O.A. No.136 of 2004 which is pending before the learned Presiding Officer of the Kolkata Debts Recovery Tribunal-II.
(2.) THE opposite party No.2 availed itself of the credit facilities from the opposite party No.1/bank and an application for recovery of a sum of Rs.15,37,857/- was filed by the creditor against the opposite party No.2 and its directors, namely, defendant No.s 4 and 5. In that proceeding, the defendant No.s 4 and 5 filed an application under Order 1 Rule 10(2) of the CPC praying for expunction of their names from the said proceeding and that application was rejected by the Debts Recovery Tribunal by the Order dated September 7, 2005. Being aggrieved by such order, the defendant No.s 4 & 5/petitioners herein preferred an appeal being Appeal No. 43 of 2005. That appeal was also dismissed by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Advocates for the parties and on going through the materials-on-record, I find that it is not in dispute that on September 21, 1995 the opposite party No.2 availed itself credit facilities from the opposite party/bank and the defendant No.s 4 & 5 / petitioners herein were the directors of the opposite party No.2 at the time of grant of credit facilities. The petitioners stood as guarantors to repay the loan in their personal capacity. They executed the guarantor agreements and the Demand Promissory Notes on the date of taking loan, that is, on September 21, 1995.
(3.) SUBSEQUENTLY, the petitioners resigned as Directors of the said company and one Abhijnan Tiwari was substituted as guarantor in place of the said two Directors on August 5, 1999. The new Director signed the Letter of Revival dated July 20, 2002 to the opposite party /bank. The petitioners have contended that the opposite party/bank was duly informed of the substitution of the bank and the bank acted upon accordingly informing the opposite party No.2 that the substitution as prayed for had been effected in place of the petitioners by its letter dated August 4, 1999. Mr. Samit Talukdar, learned Advocate appearing for the petitioner has stressed much on the letter of the bank dated September 5, 1997, the minutes of the discussion between the bank and the opposite party No.2 dated August 29, 1998 and the bank's letter dated August 4, 1998 addressed to the opposite party No.2 and thus, he submits that the Debts Recovery Tribunal and the Appellate Authority did not act properly in dealing with the application under Order 1 Rule 10(2) of the CPC.;