DRAWINGS AND METALS Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) .This is an application under Article 227 of the Constitution of India, challenging Order No.40, dated 20.1.92, passed by the Learned Assistant District Judge, 7th Court, Alipore in Title Suit No. 206 of 1989. By the said order the Learned Assistant District Judge had appointed a Receiver over the suit properties, mentioned in the schedules 1 and 2 of the plaint, and directed him to take possession, make inventory and submit a report by one month from the date of receipt of the writ.

(2.) In short the relevant facts are that the defendants were indebted to the plaintiff bank for a total sum of Rs. 52,32,347.41 p. and the bank had to institute the present suit for enforcement of the mortgage for declaration that the suit properties mentioned in schedules 1 and 2 of the plaint remained pledged and mortgaged to the bank as security for payment of Bank's claim, for a decree for sale and realisation of the suit properties mentioned in schedule 1 ; that in the said suit the bank filed an application for appointment of a Receiver. The defendant/petitioner contested the prayer for appointment of Receiver by filing a written objection, contending, inter alia that- (i) Pravabati Roychowdhury, one of the defendant, having died long before the institution of the suit. The suit was a nullity and as such no interlocutory application could be maintained in such a suit ; (ii) Non-joinder of heirs and legal representatives of Pravabati Roychowdhury, who were necessary parties, rendered the suit not maintainable; (iii) Annexures "F2" and "F3", which were relied on by the/bank for avoiding limitation, were admitted acts of forgery and as such without disposal of the application made by the defendants under section 340 of the Code of Criminal Procedure, the application for appointment of Receiver could not be adjudicated ; (iv) Appointment of Receiver will affect the running business of the firm and there was no immediate reason for appointment of such Receiver.

(3.) The Learned Trial Judge, in the impugned order, came to the findings that- (a) there was no denial of the amount of claim of the bank by the defendants. On the contrary by different acknowledgements the amount due had been confirmed from time to time ; (b) even in the absence of Pravabati Roychowdhury the entire suit could not be said to be not maintainable or a nullity, as, against the rest of the defendants, it could proceed ; (c) the fact of non-payment showed that the income derived from the business was dissipated by the defendants and the claim of the bank would get swollen by few lakhs by the time the suit could be disposed of. On the aforesaid, the learned Trial Judge allowed the application for appointment of a Receiver, which, according to him, was just and convenient within the meaning of Order 40 Rule 1 of the Code of Civil procedure.