KETAN PAREKH Vs. ORIENTAL BANK OF COMMERCE

JUDGEMENT

(1.) Rule. Heard forthwith.

(2.) After hearing the counsel for the parties, in our opinion the question that really has to be decided in this petition is as under :

(3.) Before D. R. T. it was argued on behalf of the petitioner, that the Custodian under Special Courts act ought to be joined as necessary party, as the petitioner was a notified party under the Special courts Act. This was opposed by the Respondent bank on the ground that defendant No. 2 has been sued merely as a guarantor and therefore, provisions of the Special Courts Act are not attracted. Before the learned Member of the D. R. T. it was contended that Section 9a of the Special courts Act, would be attracted. On behalf of the respondent Bank it was contended that the provisions of Section 9a are not attracted, as the petitioner was sued in his personal capacity as guarantor and not as mortgagor or pledger of the movable or immovable properties. D. R. T. accepted the said contention and rejected the objection raised by the Petitioner herein. An appeal was preferred against the said order. The learned appellate tribunal proceeded on the basis that the property of the Petitioner stood attached by the custodian under the Special Courts Act. The learned appellate tribunal further held, that it does not mean that the permission of the custodian is required nor is it necessary that the original application should be transferred to the Special court under Special Courts Act. This reasoning was based on the assumption that the Petitioner was not sued in his personal capacity but as guarantor and not as a mortgagor or pledger of the movable or immovable property. After quoting the section, the learned appellate tribunal held that the provision of the Special Courts Act are not attracted and consequently dismissed the Appeal.