Calcutta High Court
Soumil Cold Storage Ltd & Anr vs Small Industries Development Bank Of ... on 19 September, 2008
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
APOT No. 306 of 2008
G.A.No.2645 of 2008
C.S.No.46 of 2007
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SOUMIL COLD STORAGE LTD & ANR Plaintiff/Petitioner/Applicant
Versus
SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA & Anr Defendant/Respondent
BEFORE:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE The Hon'ble JUSTICE SANKAR PRASAD MITRA Date : 19th September, 2008.
The Court : There will be an order in terms of prayer (a) of the petition. This appeal has been filed against the order dated 29th July, 2008 passed by the Hon'ble First Court passed on the application made by the first defendant for recalling of the order dated 8th April, 2008. Directions were also given in the said matter. At the ad-interim stage, an order was passed on 8th April, 2008 granting time to the bank to file written statement. It appears that on 27th March, 2008 the bank issued a notice under section 13(4)(a) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 essentially for the purpose of obtaining possession of the assets of the plaintiffs. At that point of time the Hon'ble First Court held that the bank obtained time to file written statement without making any prayer for leave to enter appearance to contest the suit of the plaintiffs and on the other hand issued the said notice. Mr. Ranjan Bachawat, learned Advocate appearing for the appellant has made submission that it is nothing but only to frustrate the suit which has been filed by his client. On 29th July, 2008 the Hon'ble First Court has held that the suit has been filed for specific performance of a loan agreement dated 11th October, 2000 and a decree in excess 2 of Rs.6,47,00,000/- in addition to the specific performance has been claimed. Injunction has also been prayed for restraining the defendant bank from claiming any interest in respect of the loan sanctioned unless the balance of the loan that the plaintiffs claim was to be sanctioned, is disbursed. The Hon'ble First Court also took note of it that without entering appearance, the application was filed and further the bank did not file its written statement within the time and applied for extension of time to file the written statement. It appears that in the order dated 8th April, 2008, the Court passed an order restraining the bank from giving any effect to the notice so issued by them under section 13(4)(a) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Hon'ble First Court after taking into account of the order passed on 2nd June, 2008 was pleased to grant liberty to the bank to move the Interlocutory Court for seeking dismissal of the suit or for rejection of the plaint and also for vacating the interim order passed by the Court on April 8, 2008. Pursuant to such leave, the said vacating application was moved and leave was granted to the bank to pursue the remedies in accordance with law whether by taking steps directly against the assets of the plaintiffs or to take such other recourse which are available to the bank before the appropriate forum. The Hon'ble First Court further held that pendency of the suit would not be an impediment to take such steps.
We do not find any illegality or irregularity in the order so passed by the Hon'ble First Court since in our considered opinion the bank has a right to pursue their claim in accordance with the provisions of law and therefore the Court cannot pass any injunction restraining the bank from taking such steps under the provisions of law.
For the aforesaid reasons, the appeal and the application are dismissed without any order as to costs.
Undertakings are discharged.3
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PINAKI CHANDRA GHOSE, J.) (SANKAR PRASAD MITRA, J.) km