K T THOMAS Vs. INDIAN BANK

JUDGEMENT

(1.) Special leave granted.

(2.) In our anxiety to reach the heart of the problem, and not to be lost in the maze of interlocutory orders, we examined the case from various angles though we must confess that the petition for special leave to appeal was directed against an order removing the petitioner from the receivership of Poonmudi Estate of which he was the proprietor. Keeping aside the narrow question brought to this court in the petition for special leave we ventured into wider ramifications of the problem awaiting adjudication by the High court. Confess, we must, that we have not been able to hit the bull's eye, but at best the dreary litigative journey would be shortened.

(3.) A brief resume of the facts leading to the present petition for special leave will. illumine the contours of controversy. The first respondent-the Indian Bank ('bank' for short) had advanced a medium term loan in the amount of Rs. 5,50,000. 00 to the petitioner Shri K. T. Thomas, who is the proprietor of Poonmudi Tea Estate ('estate-' for short). On his failure to repay the loan in time, a suit being 0. S. No. 62 of 1976 was filed by the Bank against the petitioner which ended in a decree on 22/06/1976. The Bank moved a petition for execution of the decree being E. P. No. 251 of 1976 and prayed for bringing the mortgage property to court auction to realise the decretal amount. The Bank also moved E. A. No. 1023 of 1976 for appointment of a receiver to manage the Estate during the pendency of the execution application. There were some other interlocutory orders with which we are not concerned in this petition. The executing court extended to the petitioner the benefit of satisfying the decree by paying quarterly instalment of Rs. 50,000. 00 commencing from 1/10/1976 till the decree is satisfied but added a default clause by providing that in the event of default in payment of any instalment, the Bank would be at liberty to move for the appointment of a receiver. The petition for appointment of a receiver moved by the Bank was accordingly rejected. It appears that the petitioner defaulted in payment of the very first instalment. The Bank appeared not to have taken any step to enforce the default clause between 1/10/1976 and 1/01/1979. The Bank realised towards the decretal amount a sum of Rsl,83,963'38p during the aforesaid period. Ultimately, the Bank moved a petition on August 13, 1979 for appointment of a receiver of the estate. The executing court in the mean time had given one more opportunity to the petitioner to pay the balance of the decretal amount by quarterly instalment of Rs. 50,000. 00 commencing from 1/10/1980. On the failure of the petitioner to take advantage of this concession the executing court ultimately appointed respondent 2 as the receiver. The petitioner questioned this order in an appeal to the High court of Kerala. The High court by its order dated 15/11/1982 set aside the appointment of the second respondent as receiver and appointed the petitioner as the receiver. The appointment was subject to the condition to pay Rs. 1 lac to the decree holder within one month from the date of the order failing which his receivership would stand terminated and the executing court would be at liberty to appoint a new receiver. The court also directed payment of the balance of the decretal amount by instalment. The petitioner moved a petition for review of the aforementioned order which was rejected on 17/01/1983. The petitioner thereupon filed a petition for special leave against the orders dated 15/11/1982 and 17/01/1983. When this petition Same up for hearing in this court, the petitioner was asked whether he was prepared to deposit Rs. 1 lac as directed by the High court. The petitioner was hesitant to give the undertaking whereupon the court declined to entertain the petition and accordingly it was disposed of as withdrawn. In the mean time, pursuant to the order of the High court dated 15/11/1982 removing the second respondent as receiver and appointing the petitioner as receiver, he was put in the physical possession of the Estate in February, 1983. Admittedly, since then the petitioner is in the active management of the Estate.