1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3390 of 2007 In Suit No.549 of 1991 Union Bank of India .. .. Plaintiff v/s. M/s.Food Holdings (Bombay) Pvt.Ltd.& ors. ..Defendants A n d Court Receiver .. ..Respondent Mr.N.S. Fadia for Plaintiff. Mr.Dipesh Siroya for Deft.Nos.1 to 3. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 18 th October, 2008 P.C. : 1. The Suit is filed by the Plaintiff-Bank for recovery of Rs.1,58,480.66 under the Term Loan/Cash Credit Facility granted by the Plaintiff to the Defendants for Rs.2 Lakhs. The Defendants have executed various documents including Demand Promissory Note and the Hypothecation Agreement in favour of the Plaintiff. Some amounts have been paid from time to time for which credit is given. The Suit is filed for the amount payable by the Defendants at the foot of their account with interest thereon to the Plaintiff. 2. The Defendants have applied for One Time Settlement. The Plaintiff has accepted the offer. That constitutes an Agreement/Contract between the parties. But the 2 Defendants have not paid as per the said offer. Hence, the Agreement has come to an end. The Defendants cannot enforce that Agreement much later. Prayer (a) is, therefore, rejected. 3. The Defendants claim that the Court Receiver came to be appointed in respect of certain movable items. The Plaintiff was directed to sell those items towards the satisfaction of the Plaintiff's loan. The Plaintiff failed to sell the items. Hence, the Defendants claim to be compensated for Rs.5 Lakhs in that regard. 4. The order of appointment of Court Receiver is dated 16.2.1994. It mentions an amount of Rs.32,000/- to be paid to Defendant No.4 upon sale of the goods. The goods are shown to be of Defendant No.4 in the said order. 5. The Defendants have annexed an Affidavit of the Accountant of Defendant No.4 in Notice of Motion No.1056 of 1991 taken out in this Suit. The Affidavit shows that Defendant No.4 has filed an earlier Suit in the City Civil Court being Suit No.1677 of 1990 for recovery of Rs.31,100/- with interest @ 21% per annum thereon. It further shows that Defendant No.4 has claimed a lien on the goods lying with it. It also shows that Defendant No.1 was restrained from dealing with 3 the goods lying with Defendant No.4. It shows the possession and custody of Defendant No.4 in respect of the goods and the general lien claimed by Defendant No.4. It also shows that Defendant No.4 was willing to hand over possession and custody of the goods either to Defendant Nos.1 to 3 or the Plaintiff upon being secured by a Bank Guarantee. 6. The Defendants contend that the goods being in the possession and custody of Defendant No.4 and Defendant No.4 claiming lien thereon, the Plaintiff could not have taken possession of the goods without giving a Bank Guarantee for securing Defendant No.4 to the extent of Rs.32,000/- . 7. The orders passed in Suit No.1677 of 1990 show the possession of Defendant No.4, who was the Plaintiff in that Suit in respect of those goods. The possession of Defendant No.4 has been protected in respect of those goods. A reference to Criminal Complaint is also made. In a Revision filed in respect of an order passed in that Suit, Respondent No.1 therein was allowed to take the custody of the goods upon furnishing a Bank Guarantee. Respondent No.1 in that Revision is Defendant No.1 in this Suit. Hence it is seen that Defendant No.1 was given such liberty. Defendant No.1 has not used such liberty. Defendant No.1 has not 4 furnished the Bank Guarantee to the extent of Rs.32,000/- . The goods were not free for sale by the Plaintiff. The Plaintiff-Bank, which has claimed the amount under the Term Loan Facility given to the Defendants under a hypothecation Agreement is not expected to give a Bank Guarantee in respect of the goods lying in the possession and custody of another party and for which a lien is claimed and an order for securing the goods by a Bank Guarantee is obtained. 8. The Plaintiff is not shown to have wasted the property for which the Court Receiver was appointed. 9. The Defendants have claimed Rs.5 Lakhs. Without accounting for the goods or obtaining their valuation, the claim is frivolous. Prayer (b) is also rejected. 10. The Notice of Motion stands dismissed. The Suit shall proceed. Issues are framed. 11. The Plaintiff shall file its Affidavit of examination- in-chief and produce original documents for considering their admissibility. 12. Suit is adjourned to 21.10.2008. [SMT.ROSHAN DALVI, J.]