D.G.R.PATNAIK, J. - (1.) THIS appeal Is directed against the judgment dated 27.11.1995 and its corresponding decree dated 7.12.1995 passed by the Sub -Ordinance Judge, 1st Dhanbad in Title Suit No. 42 of 1975, whereby the suit was decreed in part on contest with cost against the defendants 1 to 5 (appellants herein) for a sum of Rs. 2,62,926,25 paise with interest pendente lite and future till the realization.
(2.) THE suit before the learned Court below was filed by the respondent No. 1 /plaintiff namely, the Central Bank of India against the respondent No. 1 (defendant No. 1) Bastacolla Colliery, a private limited company and its directors for decree for realization of a sum of Rs. 13,91,670.68 paise which was claimed as outstanding dues, payable by the defendants to the plaintiff bank. The basis of such claim is that a current account was opened in the plaintiff -bank at Jharia Branch on 14th May, 1959 in the name of defendant No. 1 and cash credit/overdraft facilities were also allowed to the defendants in the said account. The relevant documents including the demand promissory note and letters of hypothecation relating to coal supply bills and letters of guarantee were executed on behalf of defendant No. 1 by its directors namely, defendant Nos. 2 to 5. The plaintiff -bank advanced various sums of money to the defendant No. 1 against the guarantee for hypothecation of the coal supply bills. The defendant No. 1 had authorized the plaintiff bank by virtue of irrevocable power of attorney for collection of amount from the coal supply bills during the period between 26th May, 1959 and 22nd December, 1972. A sum of Rs. 11,24,288.75 was the outstanding amount payable by the defendant No. 1 to the plaintiff -bank. Later, on 23rd October, 1973, on the request of the defendants and on their executing demand promissory note for a sum of 12.00 lakhs along with other documents including the letter of guarantee, the amount of overdraft facilities were extended up to Rs. 12.00 lakhs and the defendant No. 1 had availed the facilities by drawing various amounts from time to time and till August 1975, the total outstanding dues payable by the defendants to the plaintiff -bank stood at Rs. 13,91,670.68. It is stated that the management of the defendant No. 1 colliery was taken over by the Central Government on 31st January, 1973 under the Coal Mines Taking Over the Management Ordinance, 1973, which was subsequently replaced by the Coal Mines (Taken Over Management) Act, 1973, the colliery of the defendants was nationalized on 1st of May 1973. Pursuant to the taking over of the Management under the earlier ordinance, the management of the colliery of defendant No. 1 was taken over by the defendant No. 6 namely, Coal India Limited and later, by defendant No. 7 namely, Bharat Coking Coal Limited and since Bastacolla Colliery had vested on and from 1st of May in the defendant Nos. 6 and 7, the plaintiff -bank has explained that though the Coal Supply Bills of the defendant No. 1 were hypothecated to the bank, but on account of the statutory provisions in the Coal Mines (Nationalization) Act, 1973, the plaintiff -bank was prevented from realizing the amounts of the hypothecated coal supply bills amounting to Rs. 10,07,585.98 from the various debtors. The plaintiff -bank had issued notices followed by advocates' notice to the defendant Nos. 1 to 5 for the payment of the outstanding dues, but they had failed to pay the amount and hence the suit. The suit was mainly contested by the defendant Nos. 2 to 5 by filing the written statement on the ground that the suit was not maintainable in its present form and was barred by law of limitation and also by the principle of res judicata. It was also pleaded that ever since the Nationalization of the Coal Mines, the defendant No. 7 was appointed as the custodian of the colliery of the defendant No. 1 by the Central Government and the entire set of documents, which were earlier executed by the defendant Nos. 2 to 5 on behalf of the defendant No. 1 in favour of the plaintiff - bank, had lost their force after taking over the Management of the Bastacolla Colliery by the Central Government. Pointing out lapses on the part of the plaintiff, the contesting defendant had pleaded that since the coal supply bills of the defendant No. 1 was hypothecated in favour of the plaintiff -bank authorizing the bank to realize the amount of coal bills from the various debtors, it was the responsibility of the bank to realize the amount of the coal bills and defendants could not be liable for the payment of the amounts of coal bills on account of bank's own negligence and inaction. It was further pleaded that in any case, since the management of the colliery was taken over by the defendant Nos. 6 and 7, it was their liability to pay the dues of the bank from the amount later realized by the defendant No. 7 against the hypothecated ¢bills and the plaintiff -bank having failed to take any legal action restraining the defendant Nos. 6 and 7 from appropriating the amounts of hypothecated coal bills, the defendants could not be thrust with any liability to pay the dues. Further pleadings of the contesting defendants was that the plaintiff -bank has filed his claim before the Commissioner of Payments in accordance with the provisions of Coking Coal Mines (Nationalization) Act, 1972 and, therefore, the bank could not simultaneously resort to filing its claim by way of civil suit.
(3.) ON the basis of the rival pleadings, the trial Court framed following issues. 1. Whether the suit, as framed, is maintainable? 2. Whether the plaintiff has got cause of action for the suit? 3. Whether the suit is bared by law of res judicata, estoppel, waiver and acquiescence? 4. Whether the suit is barred by law of limitation? 5. Whether the plaintiff is entitled to the decree as prayed for? ;