Arijit Banerjee, J. - (1.) THIS application has been taken out by one of the defendant banks for deletion of its name from the array of the defendants impleaded in the suit.
(2.) THE plaintiff and the defendant No. 1 are Limited Companies. The defendant Nos. 2 to 9 are all nationalized banks. The case pleaded in the plaint is that since 2012, the plaintiff from time to time sold and delivered diverse quantities of MS scraps, TMT bars, MS angles, MS channels etc. to the defendant No. 1 valued at Rs. 36,15,57,600/ -. The defendant No. 1 received and accepted the said goods and the bills raised by the plaintiff without any objection or demur and consumed the said goods. In spite of requests and demands, the defendant No. 1 failed to pay to the plaintiff the price of the said goods being Rs. 36,15,57,600/ - or any portion thereof. As such, the said sum along with interest at the rate of 24 per cent per annum is due and payable by the defendant No. 1 to the plaintiff. As regards the reason given for impleading the defendant Nos. 2 to 9 in the suit, it is best to set out paragraphs 12 to 14 of the plaint: "12. By virtue of the agreements entered into by and between the plaintiff and the defendant Nos. 2 to 9 in or about early 2013, the plaintiff unconditionally and unequivocally agreed and undertook that the monies due and owing from, inter alia, the defendant No. 1 to the plaintiff would stand as security for loans and advances made/to be made to the plaintiff by the defendant Nos. 2 to 9. The defendant No. 2 is the lead banker in the consortium of the defendants bankers. 13. In view of the defendant No. 1 having failed, neglected and refused to honour its obligation to make payment to the plaintiff in respect of the aforesaid dues, the plaintiff has been unable to make payment to the defendant Nos. 2 to 9. 14. In the circumstances, the monies due and owing to the plaintiff from the defendant No. 1 should be paid to the defendant Nos. 2 to 9 through the defendant No. 2 as the lead bank." The primary prayer in the plaint is for a decree for Rs. 38,32,51,056/ - against the defendant No. 1 in favour of the plaintiff with a direction to pay the decretal amount to the defendant No. 2 as the lead bank in discharge of the plaintiff's liability to the defendants bankers. Contention of the defendant/applicant: - - The plaintiff has availed financial facilities from the defendant Nos. 2 to 9 and has executed financing documents wherein the plaintiff has admitted his liabilities and obligations. As security for the financial assistance given by the defendant Nos. 2 to 9 as a consortium of banks, the plaintiff has executed security documents and has created charge over its movable properties in favour of the defendant banks. The directors of the plaintiff along with other persons have executed personal guarantees in favour of the defendant banks. The plaintiff has failed to repay its loans and as on 31st July, 2013 its debts to the consortium of banks stood at Rs. 139,05,97,844.70 (approximately) along with unrealised interest to the tune of Rs. 9,79,82,994/ - and unrealised penal interest to the tune of Rs. 18,66,327/ -.
(3.) THE account of the plaintiff with the applicant became a Non -Performing Asset as per the guidelines issued by the Reserve Bank of India and the plaintiff's account has been classified as NPA. The applicant has taken steps against the plaintiff under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SARFAESI Act) as also under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short the DRT Act). The plaintiff has impleaded the defendant Nos. 2 to 9 in this suit in an attempt to thwart or put an embargo on the proceedings under the SARFAESI Act and the DRT Act.;