CENTRAL BANK OF INDIA Vs. SREEHARI PACKAGING INDUSTRIES

JUDGEMENT

(1.) THE final Order and the judgment are being passed by this Tribunal after giving the/opportunities of being heard to both the applicant Bank and the defendants (numbering aboul three times after its transfer to this Tribunal) in connection with an application preferred by the applicant Bank under Sub-section (1) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 on September 13, 1994 before the learned Transferring Tribunal against the three defendants for an order to be passed by the said Tribunal (a) for a certificate and/or a Decree for a sum of Rs. 12,87,335.00 p. jointly and severally against those defendants, (b) also for an order for interest on the said sum from September 13, 1994 (being the date of preferring the said application) till filing of the application, interim interest and interest on judgment at the agreed rate of 19.75% per annum with monthly rest, (c) a declaration of the properties mentioned in Schedule 'A' (page 15 of the above application) dealing with all tangible, movable properties, such as building, machinery products, stocks in trade, finished goods, raw materials of borrowers/defendants stored in the premises or godown of those borrowers at 1/1, Umakanta Sen Lane, Paikpara, P.S. Chitpur, Kolkata-700030, by public auction or by private treaty with liberty to be granted to the applicant Bank to appropriate the net sale profits thereto towards the utmost satisfaction of its claim as demonstrated in the above application, (d) also for a decree for sale of the immovable property mentioned in para 2 of the Schedule (B) (pages 15,16), and (e) also for a decree under Rule 4 of Order XXXIV of the first Schedule to the Code of Civil Procedure, 1908 in Form No. 5A of Appendix 'D' to the First Schedule thereto or in any other form, as to which the said learned Tribunal might seem fit and proper in respect of the said property, mentioned in the said para of the said Schedule and other interim reliefs. THE background behind making such an application may be shortly stated below :

(2.) On April 30, 1980, late Sitanath Pal and the defendant Nos. 2 and 4 declared in clear and equivocal words that the land, building, machinery, stocks, outstandings and other assests of the Company were free from any encumbrance whatsoever and on the strength of the said express declaration, the applicant Bank was allowing them Loan/Overdraft/Cash Credit and other facilities; and for consideration of enjoyment of such facilities granted from time to time to themselves by the applicant Bank they did hereby undertake not to create any charge or encumbrances on any of the aforesaid assets of the Company by way of pledge or mortgage or issue of debentures or by any means whatsoever in favour of any third parties without obtaining the prior permission in writing from the Bank so long as the facilities enjoyed by themselves surely were continued to be given to them by the Bank.