GYANENDRA TRIPATHI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) PETITIONER has filed this revision against framing of charges vide order dated 15-10-2008 passed in Sessions Trial No. 119/08 by First Additional sessions Judge, Gwalior.

(2.) ON 11-9-1989, M/s. Mangaldeep, a Partnership Firm, had been granted cash credit (Hypothecation Limit) of Rupees Five lacs and term loan of rs. Two lacs by United Commercial Bank. Mr. Keshav Das Agarwal, who was proprietor of the Proprietorship Firm, M/s. Mangaldeep, created equitable mortgage of his residential house and one Ratanlal Jain executed guarantee agreement to secure the credit facility. On 20-7-1990 a draft letter of deposit of title deeds from the mortgagor was written by Keshav Das Agarwal in favour of the Manager, United Commercial Bank, High Court Road, Gwalior. In the aforesaid letter, it has been mentioned that premises No. 37/342 situated at deedwana Oli, Lashkar, was mortgaged as equitable mortgage for repayment of all advances made to M/s. Mangaldeep, a Partnership Firm. Subsequently, rupees Two lacs has been sanctioned as Hypothecation (Pledge) and on 13-3-1991 Mr. Keshav Das Agarwal requested for ad hoc Cash Credit Limit of rupees One lac. Thereafter, the Bank further sanctioned a Cash Credit Limit. When Mr. Keshav Das Agarwal failed to regularize the account, the Bank issued a legal notice on 18-12-1993 for regularization of the account. Thereafter, the bank filed a suit for recovery of an amount of Rs. 54,88,851/- before the District judge, Gwalior in the year 1996. After constitution of Debt Recovery Tribunal under the provisions of the Recovery of Debts Due to Banks and Financial institutions Act, 1993, the aforesaid civil suit was transferred to Debt Recovery tribunal, Jabalpur (for short 'the DRT') and it was registered as Transfer application No. 875/1999. The DRT vide judgment dated 15-10-2004 allowed the suit filed by the Bank and further ordered that defendant Nos. 1 to 7, Mr. Keshav Das Agarwal, M/s. Mangaldeep, M/s. Fitwell Tailors, Mr. Padamchand jain, Mr. Mahaveer Prasad Jain, Mr. Rajendra Kumar Jain and Mr. Sardar gurmeet Singh shall jointly and severally pay to the plaintiff Bank a sum of rs. 54,88,852/- along with costs. The Tribunal also awarded interest at the contractual rate from 10-12-94 till its realization. Against the aforesaid judgment an appeal was filed before the Appellate Tribunal. The appeal was time barred, hence an application for condonation of delay filed in appeal. It was directed by the Appellate Tribunal to deposit 30% amount of the decree passed by the DRT. The defendants did not comply the order, hence the appeal was dismissed. Thereafter, a writ petition was filed before this Court. It was registered as Writ Petition No. 1505/06 and disposed of vide order dated 26-9-2007 with a direction to the Appellate Tribunal to restore its file, the review application, and the Appellate Tribunal was further directed to consider the review application afresh and proceed to decide the appeal in accordance with law. Up to the decision of appeal this Court granted stay of recovery from the appellants.

(3.) IN the meanwhile, Mr. Amit Kumar Agarwal, who is son of Mr. Keshav Das Agarwal and was minor at the relevant time, filed a civil suit for partition. The civil suit was registered as Civil Suit No. 15-A/94 before the Sixth additional District Judge, Gwalior. In the aforesaid Civil Suit Mr. Keshav Das agarwal son of Brijbhushan, Mr. Atul Agarwal son of Mr. Keshav Das Agarwal and Smt. Manju Agarwal wife of Mr. Keshav Das Agarwal had been added as defendants. The Additional District Judge, Gwalior vide judgment and decree dated 13th October, 1999 decreed the suit and granted a decree of partition holding that the plaintiff is entitled l/4th share in the suit property. It has further been mentioned in the judgment and decree that if defendant No. 1 had taken any loan on the basis of the suit property then the plaintiff would not be liable for payment of the aforesaid loan. In pursuance to the aforesaid judgment and decree a final decree of partition was passed by the Court and by the aforesaid decree the house registered with the Municipal Corporation, Gwalior, as House no. 37/42, situated at Deedwana Oli, Lashkar, Gwalior has been partitioned and as per the aforesaid partition decree Mr. Atul Kumar has been given ground floor of the house, which was shown in blue lines in the map. Similarly, Amit kumar has been given basement floor of the house, which was marked in red lines in the map and Smt. Manju Agarwal has been given first floor of the house, which was shown in yellow lines in the map. The aforesaid final partition decree was passed on 3-5-2000 and consequently a registered partition deed was also executed between the parties.