BIRESWAR DAS MOHAPATRA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed by the guarantors to the loanee who obtained loan from the State Bank of India, Bhubaneswar, Industrial Estate Branch (hereinafter referred to as the 'SBI'). The petitioners are also erstwhile Managing Director and Director of M/s. East End Engineers (P) Ltd., which is a Company under the Companies Act and the loanee from the Bank.

(2.) THE material facts of the case are the said Company, namely, M/s. East End Engineers (P) Ltd. took loans from SBI after executing security documents and creating equitable mortgage of immovable property supported by the guarantee of the petitioners. In order to realise its loans, SBI filed on 28.7.1993 a suit in the Civil Court being TMS No. 207 of 1993. Thereafter the said company was declared sick and under the provisions of SICA the BIFR made a recommendation under Section 20 of SICA for its winding up. On the basis of such recommendation by the BIFR, winding up proceeding commenced before the learned Company Judge of this Court. The final winding up order has not yet been passed. In the said winding up proceeding, the Official Liquidator and Registrar of Company have been noticed and one Mahendra Sarangi, posted as J.G.M. Recovery, Legal Affairs and Valuation, was appointed as the Officer of the Operating Agency in order to assist the Official Liquidator. Direction has also been given by the learned Company Judge on the Official Liquidator for taking steps for realization of the assets and that proceeds are to be deposited in the High Court for its distribution in accordance with the provisions of Section 529A and other provisions of the Companies Act. A copy of the said order is annexed to the writ petition. After constitution of the DRT, the suit filed by the SBI (TMS 207/1993) was transferred to DRT and proceedings have been taken before DRT.

(3.) THE DRT ultimately by its order dated 16.12.2004 in MA No. 202 of 2004 arising out of TC No. 140 of 2001 held that the preliminary objection will be decided in the main OA and not separately. Against the said order another writ petition was filed being Writ Petition No. 1373 of 2005 and ultimately the said writ petition was disposed of on 16.5.2006 by directing the DRT to decide the question of maintainability first before proceeding with the original application. Pursuant thereto, the DRT by its order dated 15.6.2006 dismissed the preliminary objection. Against that order this writ petition has been filed.