Amarendra Nath Sen, J. - (1.) The appellants who are defendants in the suit filed by Mercantile Bank Ltd. against them along with Anand Iron and Steel Company, the other defendant being defendant No. 5 in the suit, made an application under section 68(2) of the Transfer of Property Act (hereinafter referred to as the Act) for stay of this suit. The said application came up for final disposal before Mrs. Padma Khastgir, J. The learned Judge for reasons recorded in the judgment delivered on 26.2.1979 dismissed the said application of the appellants. Aggrieved by the judgment and order of the learned Judge the appellants have preferred this appeal. Mercantile Bank Ltd. (hereinafter referred to as the Bank) and Anand Iron and Steel Co. (hereinafter referred to as the firm) are the respondents in the appeal.
(2.) After having preferred this appeal the appellants made an application for stay of the operation of the order passed by the learned Judge and also for stay of the suit and continuance or commencement of all proceedings thereunder including an application made by the' Bank on the 23rd of October, 1978, now pending before the trial Court. At the time of the hearing of the application, the court felt that in the facts and circumstances of this case it would be convenient to dispose of the appeal itself along with the application in the larger interest of justice. The learned counsel for the parties were of the same opinion. For shortening the proceeding and for avoiding multiplicity of proceedings the court gave appropriate directions for the hearing of the appeal along with the application. This judgment disposes of the appeal and also the application.
(3.) The facts of the case have been fully set out in the judgment of the learned trial Judge. The facts material for the purpose of this appeal may, however, be briefly indicated. The appellant No. 1 Manada Sundari Saha carried on and still carries on business inter alia as manufacturer of plywood machinery under the name and style of B. S. Engineering Corporation and the said appellant maintained account or accounts with the Bank. The said appellants had approached the Bank for over draft facilities and the Bank had agreed to allow overdraft facilities to the said appellant against hpothecation of all present and future stocks of finished and semi finished dryers, embossing machines, plywood machines, industrial machines and any other machines, work in progress and all other stores and raw materials, movable plants and machinery held by the said appellant and also all present and future book debts, outstanding bills and money receivable by the said appellant together with the benefits of all rights thereto by way of first charges and security for payment to the Bank to demand of the balance and all other monies at any time owing to the Bank. A deed of hypothecation containing or evidencing the terms and conditions on the basis of which the Bank had agreed to allow the overdraft facilities was duly executed by the said appellant No. 1. Manada Sundari Saha. The Limit of the overdraft facilities allowed by the Bank to the said appellant was initially Rs. 3,00,000/-. The said limit however, by agreement between the appellant Manada Sundari Saha and the Bank, was raised from time to time. It appears that the said limit was ultimately raised on the 8th of June 1977 to Rs. 20,00,000/-. It also appears that the said appellant had executed various documents including a number of deeds of hypothecation from time to time and also promissory note. The appellants Nos. 2, 3 and 4 are alleged to have guaranteed repayment of the sums due and payable by the appellant No. 1 in the overdraft account. The appellant No. I, at has been alleged in the plaint, has acknowledged the indetedness in the said account and the liability to pay the same from time to time. In paragraph 23 of the plaint it has been alleged that the plaintiff Bank has some other claims in respect of two other accounts against 1st, 2nd, 3rd and 4th appellants and the appellants deposited deeds of certain immovable properties of the said appellants in the town of Calcutta by way of collateral and/or additional security and the properties are situate outside the jurisdiction of this Court and the plaintiff has some other cause or causes of action against the said defendants for which the plaintiff Bank has asked for leave under Order IT Rule 2 of the Code of Civil Procedure, to file such other suits against the defendants as and when the plaintiff Bank is so advised. The firm Anand Iron and Steel Co. which is the defendant No. 5 in the suit and is the second respondent in the appeal, has been impleaded as a party to the suit on the allegation that the Bank had come to learn that the said firm had obtained a consent decree against the first appellant and in execution of the said decree the said firm got a Receiver appointed over the securities of the Bank and the security of the Bank is in jeopardy and the firm is not entitled to realise its dues, if any, from the appellant No 1 by recourse to the said securities. In the plaint filed the Bank has prayed:- (1) Leave under clause 12 of the Letters Patent and under Order II Rule 2 of the Code of Civil Procedure, (2) Decree for Rs. 21,64,360.66P. as against the defendant No. 1,2,3 and 4 and each of them. (3) Interest on the said sum of Rs. 21, 64, 360. 66P, on and from 1st October, 1978 at the rate of 15%per annum till realisation. (4) Declaration that the machines, goods as mentioned in annexure 'H' and the book, debts as mentioned in Annexure 'H' remain hypothecated and or charged and/or pledged with the Bank by way of first and paramount charge for payment of the.. Bank's dues to the exclusion of all others. (5) Sale of the said machines and goods either by public auction or by private treaty and realisation and/or collection of the book debts with liberty to appropriate the same in protanto satisfaction of the Bank's Declaration that the plaintiff has superior title and/or interest to plaintiff. (6) Declaration that the plaintiff has superior title and/or interest to that of the 5th defendant in respect of securities of the plaintiff as mentioned in annexure 'H' and 'H-1' for the satisfaction of the dues of the plaintiff. (7) Permanent injunction against 5th defendant not to execute the decree obtained in suit No. 514 of 1977 as against the securities of the plaintiff before the dues of the plaintiff are fully paid.;