CENTRAL BANK OF INDIA Vs. SETH BROTHERS

JUDGEMENT

(1.) This is an application moved by the defendants 1I to 3 under Section 151 CPC wherein they have prayed for the recalling of the order dated 22-5-1995, transferring the present suit to the Debt Recovery Tribunal in view of the valuation being more than Rs.10 lacs.

(2.) The plaintiff. Central Bank of India has filed the present suit for the recovery of Rs.27,99,396.00 on account of credit facilities, overdraft limits and open loan availed of by defendants. The amount includes claim for interest also. Defendant No.1 is the partnership firm. Defendant Nos.2 and 3 are the partners, while the defendant No.4 is the guarantor. Pleadings and admission/ denial of documents has been completed. 3.Defendants denied their liability alleging several acts of omission and commission by the bank officials. The defendants questioned the action of the plaintiff' bank in recalling of the loan, freezing of account, when it had hypothecated stocks of over Rs.30 lacs apart from other securities, fixed deposits receipts and L.I.C. policies of over Rs.30 lacs, against a debit balance of only Rs. 20 lacs. Apart from the 270 foregoing, the defendant Nos.1 to 3 have specifically raised acounter claim claiming Rs.5 lacs as damages inter alia on the failure of the plaintiff to obtain necessary insurance cover, which was stated to be the obligation of the plaintiff. The defendant Nos. 1 to 3 had alleged that the plaintiff bank committed various acts of omission and commission and failed to release the stock that had reached the date of expiry. Replication as well as. reply to the counter claim has been filed. Pleadings have been completed and admission/denial of documents has also been completed.

(3.) Learned counsel for the plaintiff argued that the defendants have contended in the written statement and counter claim that nothing is payable and due to the plaintiff bank. On the other hand, the defendants/applicants are entitled to get and recover more than Rs.5 lacs from the bank. Mr. Bansal, learned counsel argued that the question whether anything is due to the plaintiff bank from the defendants or not? and whether anything is due from the plaintiff bank by way of counter claim should be determined by this Court by trying the suit and counter claim. It was urged that the documents filed by the parties are common to the suit and the counter claim. The suit as well's the counter claim of the defendant should be tried, heard and determined together. Mr. Bansal further argued that since the .Debt Recovery Tribunal did not have any jurisdiction to adjudicate any claim made against the bank, the suit as well as counter claim cannot be transferred. In the alternative, Mr. Bansal argued if the suit is to be transferred, then the counter claim ought to be segregated. He relied on the provision of Order VIII Rule 6 A (2) Civil Procedure Code to urge that the counter claim is to have the same effect as a cross suit and governed by the rules applicable to a plaint. He also referred to Order VIII Rule 6C Civil Procedure Code . and Clause 10 of Chapter VI or Original Side Rules, which permit the segregation of the counter claim to be tried separately though on the application of plaintiff.