Ajit Singh Bains, J. - (1.) The State Bank of India has filed the present application under Sections 22 and 23 (3) read with Section 151 of the Code of Civil Procedure for transfer of Suit No. 844 of 1972 pending in the Court of the Subordinate Judge 1st Class, Ballabhgarh, to the Court of the Subordinate Judge at Alipore, District 24 Parganas (West Bengal). It is alleged in the application that the petitioner-Bank through its Ballyguange Branch at Calcutta advanced to one Messrs. Sakow Industries (Private) Limited (hereinafter referred to as the 'said Company') various types of loans amounting to about Rs. 53 lakhs for the Industrial units of the said Company in Calcutta in the State of West Bengal and Faridabad in the State of Haryana. The said loans also included the loans advanced to Messrs. Tochi and Asa-vari carrying on business at 36, Indus-trial-cum-Housing Estate, Faridabad, These concerns were owned by Shri S. P-Mehte, who is Director of the said Company, All the liabilities of the loans were taken over by the said Company later on, It is also alleged in the petition that the loans advanced to the said Company were personally guaranteed by its two Directors, namely, Shri S. P. Mehta and Shri' mati Nirmala Devi Mehta (wife of Shri S. P. Mehta). The said Company also pledged, hypothecated, charged its goods machinery, produce, merchandise, bills and book-debts etc. with the petitioner- Bank lying in the godowns of the said Company at Rajpur and Khaikhli in the State of West Bengal and at 36, Indus-trial-cum-Housing Estate, Farida'bad, aa security for the repayment of the loans. The said-Company also agreed to mortgage with the petitioner-Bank their lands and buildings at 36, Industrialcum- Hous-ing Estate, Faridabad as security. It was also agreed upon that if the said Company does not abide by the financial discipline regarding the repayment of the aforesaid loans, the petitioner-Bank shall be entitled to call for the entire amount of loans including interest and other charges accrued thereon and to take physical possession of all the goods, produce, stocks, merchandise etc. The whole amount advanced to the said-Company by the petitioner-Bank amounted to about Rs. 53 lakhs. Not a single penny out of the loans advanced was returned by the said-Company in spite of persistent demands made by the petitioner-Bank.
(2.) In order to realise the loans, the petitioner-Bank filed a civil suit in the High Court at Calcutta in its ordinary civil jurisdiction for the recovery of a sum of Rs. 53,05,463.02 against the said-Company and the two guarantors, namely, Shri S. P. Mehta and Mrs Nirmala Dcvi Mehta (Suit No. 542 of 1972-- State Bank of India v. Sakow Industries (Private) Ltd.). The High Court appointed two Receivers on November 24, 1972, to take possession of the godowns of the said-Company. The Receivers succeeded in taking possession of the godowns at Rajpur but were not allowed to take possession of the godown at Khaikhli. They however, did not attempt to take possession of the godowns at Faridabad. The aforesaid suit was filed in the High Court at Calcutta on November 23, 1972, whereas the said-Company changed its registered office from 10, Middleton Row, Calcutta, to 13, Lower Range, Calcutta, on November 16, 1972. As the new registered office of the said-Company did not fall within the original side territorial jurisdiction of the Calcutta High Court, the said-Company raised an objection regarding the jurisdiction of the Calcutta High Court and the petitioner-Bank, in view of the said objections, withdrew the aforesaid suit from the Calcutta High Court with liberty to file a fresh suit on the same cause of action against the defen- dants in a proper forum vide order of the High Court dated December 18, 1972. During the interval that elapsed between the withdrawing of the suit from the High Court and filing of the fresh suit in the Alipore Court, it was found by the petitioner-Bank that the said-Company had broken the locks of the petitioner-Bank from their godowns at Khaikhli in breach of loan agreements and put the locks of one Messrs. Sakow Trading and Industrial Corporation, a sister partnership concern of the said Company having its Head Office at 10, Middleton Row, Calcutta. The persons interested in the said-Company started carrying on their unit at 36, In-dustrial-cum-Housing Estate, Faridabad, in a different name of Messrs. Sakow Industries (Faridabad) Private Limited with a view to defraud the petitioner-Bank of the huge amount due from the said-Company. It is also alleged that the Directors of Sakow industries (Faridabad) 'Private Limited are related to the Directors of the said- Company. This fact is not even denied in the written statement filed on behalf of the respondent in this application. A fresh suit was also filed by the petitioner-Bank in Alipore Court on January 13, 1973, against the said- Company, that is, Messrs. Sakow Industries (Private) Limited, its two guarantors, namely, Shri S. P. Mehta and Mrs. Nirmala Mehta, and the two new concerns, namely, Sakow Trading and Industrial Corporation and Sakow Industries (Faridabad) Private Limited who claimed themselves to be the lessees and owners of all the securities of the petitioner-Bank as mentioned above. The Alipore Court also appointed the same Receivers, who were earlier appointed by the Calcutta High Court as Receivers, in this case also, both the Receivers tried to take possession of the godowns at Khaikhli and also made an attempt to bake possession of the godowns at Faridabad, but they were prevented to take possession by the plaintiff-Company and Messrs. Sakow Trading and Industrial Corporation. Messrs. Sakow Industries (Faridabad) Private Limited (hereinafter referred to as the plaintiff-Company) filed a suit in the Court of the Subordinate Judge Ist Class, Ballabhgarh (Suit No. 844 of 1972, now No. 63 of 1974) for permanent injunction to the effect that the petitioner-Bank be restrained permanently from in-terfering in the peaceful possession of the premises mentioned in the plaint, that is 36, Industrial-cum- Housing Estate, Faridabad. In the plaint, it is mentioned that the entire premises and buildings at 36, Industrial-cum- Housing Estate have been taken by the plaintiff-Company on long lease for a period of twenty years through a registered lease deed dated July 11, 1972 from the said-Company. It is further averred that the plaintiff-Company has bought the machineries, manufacturing rights, fittings and fixtures from the previous owners for a valuable consideration.
(3.) The petitioner-Bank filed its written statement on April 21, 1973, and controverted all the allegations made in the plaint. It was specifically mentioned in the written statement that the present suit was filed in collusion with Messrs. Sakow Industries Private Limited with mala fide intentions to deprive the petitioner-Bank of its securities lying at 36, Industrial-cum-Housing Estate Faridabad. It is .also alleged by the petitioner-Bank that the liquidation proceedings were initiated against Messrs. Sakow Industries Pvt. Ltd. in the High Court at Calcutta being Company Petition No. 88 of 1971 and the said liquidation operations culminated in the winding up order passed by the Calcutta High Court on July 23, 1973. In view of the winding up order mentioned above, it was found that the lease granted in favour of the plaintiff- Company by Messrs. Sakow Industries Private Limited and the transfer of all other machineries etc. in favour of the plaintiff-Company was void eb initio under the provisions of Sections 531-A and 536 of the Companies Act as the liquidation proceedings were initiated much before the alleged lease end transfer of machineries etc. on July 11, 1972, in favour of the plaintiff- Company.;