HINDUSTAN MACHINE TOOLS LTD Vs. NEDUNGADI BANK LTD

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree dated 27-2-1982 passed by the XII Additional City Civil Judge, Bangalore. By the said judgment, the lower Court decreed the suit of the plaintiff, declaring that the plaintiff-Bank has the first charge in the machinery described in schedule to the plaint. The lower Court further ordered that defendant-2 is entitled to realise the amount due to it by defendant-1 in pursuance of the decree in O.S. No. 6/ 1972 by sale of the said machinery, but subject to the first charge of the plaintiff. Being aggrieved by the same, defendant-2 - Hindustan Machine Tools Limited has preferred this appeal.

(2.) The facts relevant for the disposal of this appeal briefly stated are as under: Defendant 2 (appellant) had filed original suit No. 6/ 1972 against Fix Well Industries of which M.V. Vasudeyan (defendant-1 in the present suit) Was the proprietor. The said was filed by the defendant-2 - Hindustan Machine Tools for the recovery of Rs. 85,621-50. The said suit was decreed by the judgment dated 16-11-1972 of the Court of the Civil Judge, Civil Station, Bangalore. By the said judgment, the Civil Judge decreed the suit of the plaintiff. It was further ordered that the defendant will pay the decretal amount in six equal half yearly instalments and if he fails to pay the instalment, the plaintiff would be entitled to recover the entire amount in one lump sum. There was also a direction by the Court that the defendant shall not create charge or transfer the machinery. In furtherance of the said judgment, which is produced at Ex. P1, the decree was drawn up, a copy of which is marked at Ex. D2.

(3.) The said decree was sought to be executed by Hindustan Machine Tools in execution case No. 40/ 1973. In the said execution, the property that is to say, the machineries described in the suit schedule, were attached. Consequent upon such attachment, respondent-1 Bank (Nedungadi Bank - hereinafter referred to as the Bank) filed Miscellaneous Case No. 99/ 1974) under Order 21, Rule 58, CPC praying for raising the attachment on the ground that the property was hypothecated in its favour. However, the said application was dismissed on 7-11-1975. It is under these circumstances, the plaintiff-Bank has filed the present suit praying for the reliefs referred to hereinabove. In substance, the allegation made in the plaint is that the machineries were hypothecated to the Bank by defendant-1 - Vasudevan on 12-5-1973, when he took a loan of Rs. 1,75,000/- from the Bank. The Bank therefore, asserted that it had the first charge in respect of the machinery, which was hypthecated to it. It has also made the other allegations collateral to the same, which are summarised by the Court below in para No. 11 of its judgment.