NAGULU S K COAL DEPOT Vs. SYNDICATE BANK

JUDGEMENT

(1.) The respondent-Bank filed a suit O.S.139 of 1994 on the file of the III Addl. Judge, City Civil Court, Secunderabad, for recovery of a sum of Rs.l5,09,663/- from the petitioners in connection with the loan advanced to the petitioners 1 and 3 by the Bank for business purpose. To secure the loan, certain immovable properties were mortgaged and the stock in trade viz., coal and coke, was hypothecated. The fact that the respondent (sic petitioners) committed default in discharge of the loan is not disputed. However, in the written statement, a dispute has been raised that full credit was not given for the amount realised by the cheque issued by the petitioners for a sum of Rs.1,60,000/-.

(2.) Pending the suit, the respondent-Bank filed an application to pass an order for the sale of the hypothecated items shown in the schedule i.e., entire coal and coke stored in the premises bearing No.1-8-116/1/3, Mackloguda, Nallagutta, Secunderabad. The said application was filed under Order 39 Rule 6 read with 141 C.P.C. The trial Court found that even after taking into account the disputed amount of Rs.1,60,000/-, there is heavy balance due from the petitioners, that the petitioners did not file any stock statement and that the petitioners were not carrying on any active business and, therefore, no purpose will be served in keeping the stock with the petitioners. The trial Court also took note of the fact that the Bank, in terms of the hypothecation deed, dt.3-5-1991 has got lien over the hypothecated stock and can recover the possession and sell the same and such step can be taken by the Bank with the intervention of the Court. The trial Court also referred to the admission in the counter that the business became sick. The trial Court, therefore, felt that in the interest of both the parties, it is a fit case to appoint a Commissioner to take possession of the hypothecated stock and sell the same in public auction and to deposit a sum of Rs.1,00,000/- in the Court out of the sale proceeds realised. The petition was allowed accordingly and an Advocate-Commissioner was appointed for the purpose of taking possession of the hypothecated stock and to auction the same. It appears that the Advocate-Commissioner has since taken inventory of the stock, according to which, the value of the stock found in the premises is approximately Rs.1,60,000/-.

(3.) The learned Counsel for the petitioners contended that the application which was filed under Order 39 Rule 6 of C.P.C. is misconceived in as much as the said Rule is applicable to perishable goods only and if such application could be filed under Section 151 C.P.C., a combined application both under Order 39 Rule 6 and l5l C.P.C. is not maintainable.