AMULYA GOPAL MAJUMDAR Vs. UNITED INDUSTRIAL BANK LTD

JUDGEMENT

(1.) These are the two appeals from original decrees arising out of two suits both of which were decreed by the trial Court. The two suits though heard and disposed of independently, are interlinked, and as such, we have heard these appeals analogously. While F. A. 481 of 1972 is directed against the judgment and decree dated Sept. 5, 1970, passed by the learned Subordinate Judge, 7th Court, Alipore in Title Suit No. 119 of 1965, F. A. 127 of 1977 is directed against the judgment and decree dated July 29, 1976, passed by the learned Subordinate Judge, 4th Court, Alipore in Title Suit No. 29 of 1973. United Industrial Bank Limited, a banking company incorporated under the Indian Companies Act had instituted both the aforesaid suits and Amulya Gopal Majumdar, a common defendant (being defendant No. 6 in Title Suit No. 119 of 1965 and defendant No. 1 in Title Suit No. 29 of 1973) alone contested the said two suits, at their hearing and feeling aggrieved by the decrees passed therein he alone has preferred the aforesaid two appeals.

(2.) Title Suit No. 119 of 1965 was a suit for realisation of an alleged mortgage debt due on an overdraft account from Eagle Plywood Industries Private Limited, defendant No. 1 and two of their guarantors, namely, defendant Nos. 2 and 3. In that suit the plaintiff's case shortly was that in the year 1951 Eagle Plywood Iridustries Private Limited opened an open current account with Banker's Union Limited later renamed as Metropolitan Bank Limited with overdraft facility to the extent of Rs. 2,50,000/- and by way of security therefor created an equitable mortgage by deposit of title deeds in respect of an immovable property being a plot of land at Mahendra Banerji Road, within the South Suburban Municipality, P.S. Behala, District 24 Parganas, described in items 1 to 4 of Schedule B to the plaint (hereinafter referred to as the Behala property) and the factory appliances described in item 5 of the said Schedule. That by mutual agreement between the said Eagle Plywood Industries Private Limited and the said Metropolitan Bank Limited, the overdraft limit was extended to Rs. 2,75,000/- in the year 1954 when it was further agreed that the title deeds already deposited with the bank would be held by the bank as security for the extended loan facility granted to the defendant No. 1 and a deed was executed to that effect on June 28, 1954. That being, in need of further sum, Eagle Plywood Industries Private Limited requested the said Metropolitan Bank Limited to raise the overdraft facility limit up to Rs. 5,00,000/- which was agreed to and on November 21, 1962, the said Eagle Plywood Industries Private Limited further deposited the title deeds in respect of immovable properties set out in item 6 of Schedule B to the plaint (hereinafter referred to as the Coochbehar property) by way of security for repayment of the entire loan due on such account and the defendants 2 and 3 stood guarantors for such repayment. The said Metropolitan Bank Limited having been amalgamated with the plaintiff bank, all its assets, rights, powers, claims and demands stood transferred to and became the properties and assets of the plaintiff bank in terms of a sanctioned scheme. The plaintiff accordingly claimed that a sum of Rs. 5,79,977.22 which stood due towards principal and interest as on October 31, 1965, from the said Eagle Plywood Industries Private Limited on the said account was payable to the plaintiff and for recovery thereof the aforesaid suit was instituted. It was further claimed that the transaction between the parties constituted an equitable mortgage, so the plaintiff is entitled to realise the amount on enforcement of such a mortgage.

(3.) In this suit it later transpired that, Amulya Gopal Majumdar, the appellant before us, had in the meantime auction-purchased the Behala properties in execution of a mortgage decree on enforcement of an earlier mortgage in respect of that property though neither Metropolitan Bank Limited nor the plaintiff, the puisne mortgagee was made a party to the suit for enforcement of that mortgage. Hence, Amulya Gopal Majumdar was added as a party defendant, being defendant No. 6 as the purchaser of the equity of redemption.