1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3601 OF 2009 IN SUIT NO.1098 OF 1999 ICICI Bank Limited .... Plaintiffs. V/s B.D. Industries Limited & Anr. .... Defendants. Mr. Virag Tulzapurkar, Senior Counsel with Mr. Sachin Chandarana with Mr. Durgesh Khanapurkar i/b M.K. Ambalal & Co. for plaintiffs. Mr. D. Madon, Senior Counsel with Mr. K.H. Mody with Mr. R.P. Lote for defendant No.1. CORAM: V. M. KANADE, J. DATE : 19TH JANUARY, 2010 P.C.:- 1. This Notice of Motion is taken out by Plaintiff – Bank, seeking a direction to the Court Receiver to to pay the plaintiff a balance sum of Rs 12,00,00,000/- after paying a sum of Rs 3,00,00,000/- towards workmen dues which amount is lying with the Court Receiver. 2. Brief facts are that the suit is filed by the present plaintiffs for a declaration that an amount of Rs 50 lacs is payable to plaintiffs with 15% interest and also a further sum 2 in respect of 1,50,000 – 15% secured redeemable non- convertible debentures of Rs 100 each aggregating to Rs 150 lakhs issued to public together with interest. 3. It is the case of plaintiffs that defendants issued (a) 1,50,000 - 15% secured redeemable non-convertible Debentures of Rs 100/- each aggregating to Rs 150 lakhs and (b) 50,000 - 15% secured redeemable non-convertible Debentures of aggregate nominal value of Rs 50 lakhs privately placed with Unit Trust of India. Defendants, thereafter, approached plaintiffs to act as trustees in respect of the said 15% NCDs which were privately placed with Unit Trust of India. According to plaintiffs, after the said sum became due and payable, the amount was not paid and, therefore, plaintiffs have filed a suit for redemption of mortgage in respect of the said NCDs. 4. Mr. Virag Tulzapurkar, the learned Senior Counsel appearing on behalf of plaintiffs submitted that, initially, Court Receiver was appointed in respect of immovable properties described in Exhibit- “A”, movable properties described in Exhibit “B” and the stocks and raw material described in Exhibit “C” by order dated 21/04/1999 and the Receiver was permitted to sell the stocks, movables and raw materials described in Exhibits “B” and “C” and invite bids from third parties in respect of immovable properties. Thereafter, by an order dated 31/07/2001, the learned Single Judge was pleased to direct the Court Receiver to sell 3 movable and immovable properties in accordance with law. Thereafter, an application was made by Maharashtra Rajya Rashtriya Kamgar Sangh that they have pari pasu charge and that charge was passed in their favour and that they could lodge a claim with the Court Receiver. On this application, an order was passed by this Court on 21st December, 2001 that in the event the applicants have any Award in their favour they can lodge the claim with the Court Receiver, subject to orders thereafter taken by the Court Receiver from this Court and the said application was disposed of in terms of the order dated 21/12/2010. Thereafter, by an order dated 09/10/2009, the learned Single Judge (Coram: S.J. Vazifdar, J.) passed an order in Court Receiver’s Report No.289 of 2009 that a sum of Rs 15 crores has been recovered and invested in nationalized banks and that the claim of ICICI Bank, the plaintiffs herein, is about Rs 10 crores with interest and, therefore, the Court Receiver was permitted to disburse the amount of Rs 3 crores to the said workers. Mr. Tulzapurkar, the learned Senior Counsel appearing on behalf of plaintiffs submitted that the said order has become final. He submitted that, therefore, plaintiffs are seeking permission to withdraw the said amount of Rs 12 crores which was deposited with the Court Receiver. He submitted that this Court court, by exercising its discretionary power under section 151 of the Civil Procedure Code, could permit the plaintiffs to withdraw a sum of Rs 12 crores with an undertaking to return the said amount with interest as may be fixed by this Court. He 4 submitted that the total claim of plaintiffs is about Rs 26 crores and this is certified by the Chartered Accountant of plaintiffs. He submitted that if the amount was withdrawn by plaintiffs – Bank herein, the defendants would be benefited since from the date on which the amount is withdrawn by plaintiffs – Bank, to that extent, defendants would not have to pay interest. He submitted that if, however, a decree for lessor amount is passed in favour of plaintiffs, he would undertake to withdraw the said amount at the rate of interest fixed by this Court. He submitted that three learned Single Judges of this Court have passed orders in similar circumstances. He invited my attention to the following three orders viz. (i) order dated 23/03/2009 passed by brother S.C. Dharmadhikari, J. in Notice of Motion No.922 of 2009 in Suit No.5237 of 1998, (ii) order dated 05/06/2003 passed by brother S.A. Bobde, J. in Notice of Motion No.1204 of 2001 in Suit No.1879 of 1997 and (iii) order dated 03/08/2000 passed by sister Smt. K.K. Baam, J. (as she then was) in Company Application (Lodg) No.459 of 2000 in Company Petition No.521 of 2000. He submitted that in all these three cases, the Bank was permitted to withdraw the amount which was lying with the Court Receiver. 5. On the other hand, Mr. Madon, the learned Senior Counsel appearing on behalf of defendant No.1 submitted that, at this stage there is no provision under the Code for permitting plaintiffs – Bank to withdraw the amount which is lying with the Court Receiver. He submitted that provisions 5 of section 151 of the Civil Procedure Code would not be resorted to when there is an express provision in the Code. He submitted that in respect of monies deposited in the Court, provision of Order XXXIX Rule 10 would be applicable and under the said provision, the said amount could not be withdrawn by the plaintiffs. He then submitted that the plaintiffs’ suit is barred by limitation since the suit is for money claim and when the first amount became due and payable in 1992, the suit was filed in the year 1999. He then submitted that the three orders on which reliance was placed by the Counsel for plaintiffs would not be of any assistance to plaintiffs since the said orders were passed on the facts of those cases. In two cases, the orders were passed on concession and in third case, no reply was filed by defendants. He submitted that, therefore, plaintiffs should not be permitted to withdraw the said amount. He then submitted that claim of plaintiffs, as stated in the affidavit in support, is an exaggerated claim. He submitted that the principal amount which is due and payable is Rs 2 crores and, by no stretch of imagination, it could be said that plaintiffs are entitled to recover an amount of Rs 26 crores, as alleged in the affidavit in support. 6. I have heard both the Senior Counsel at length. 7. As rightly pointed out by the learned Senior Counsel for plaintiffs, the order to be passed by this Court on the question as to whether plaintiffs should be permitted to 6 withdraw the amount lying with the Court Receiver during pendency of the suit is purely a discretionary order since the provision of Order XXXIX Rule 10, in my view, would not apply to the facts of the present case since the present suit, essentially, is for redemption of mortgage. The question is, whether plaintiffs should be permitted to withdraw this amount at this stage? Admittedly, plaintiffs are a private Bank. Defendants have disputed the claim of the plaintiffs. Plaintiffs also will have to prove their case. The question of limitation also has been raised by defendants, though, prima facie, it appears that the suit is filed within limitation since period of redemption of mortgage is 12 years. The orders on which reliance has been placed by the learned Counsel for plaintiffs also have been passed on the facts and circumstances of those cases. In the case of order passed by sister K.K. Baam, J. (as she then was), it appears that the matter in the said case was not contested by defendants. Similarly in the case of order passed by brother S.A. Bobde, J., none appeared on behalf of defendants and, therefore, the said order was an ex parte order. In the case of order passed by brother S.C. Dharmadhikari, J., it appears that the matter in the said case was not seriously contested by defendants since the objection raised by defendants has not been recorded by the learned Single Judge. 8. In this case, the amount which is lying with the Court Receiver has been invested in Nationalized Bank and, therefore, the said amount is properly secured. Hence, at 7 this stage, the question of permitting plaintiffs to withdraw the said amount does not arise. The submission made by the learned Senior Counsel appearing on behalf of plaintiffs, therefore, cannot be accepted. 9. In the circumstances, Notice of Motion is dismissed. Hearing of the suit, however, is expedited. Place the matter for directions after two weeks. Defendants shall file their Written Statement within four weeks. (V.M. KANADE, J.)