1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2926 OF 2008 WITH WRIT PETITION NO.3097 OF 2008 WITH WRIT PETITION NO.3100 OF 2008 ICICI Bank Ltd. .. Petitioner versus Deepak Kataria & Ors. .. Respondents Ms.Gargi Bhagwat i/by M/s.Divekar for the petitioner. Mr.Deepak Maneklal Kataria (respondent No.1 in W.P.no. 2926 and 3097 of 2008 and respondent No.2 in W.P.no.3100 of 2008) in person CORAM : A.S.OKA, J. DATE : 20th January 2010. JUDGMENT: . On 2nd May 2008 this Court issued notice for final disposal at admission stage. On 14th January 2010 when these writ petitions were called out, the learned counsel appearing for the respondents pointed out that he has applied for discharge. He, however, sought time to enable him to inform the date fixed to the respondents. Accordingly, writ petitions are fixed today. The learned counsel appearing for the petitioner pointed out that the respondents in all the three writ petitions have been duly served with the notice. The 1st respondent in Writ 2 Petition Nos.3097 and 2926 of 2008 appears in person. The said 1st respondent is the 2nd respondent in Writ Petition No.3100 of 2008. In Writ Petition No.3100 of 2008 the 1st respondent is the wife of the 2nd respondent. The wife of the said respondent is the second respondent in Writ Petition No.2926 of 2008. The father of the first respondent Deepak is the third respondent in Writ Petition No. 2926 of 2008 and the second respondent in Writ Petition No. 3097 of 2008. The brother of the said Deepak is the third respondent in Writ Petition No. 3097 of 2008. The said Deepak (hereinafter referred to as the party in person) sought permission to address the court on behalf of the other Respondents. 2. These three petitions arise out of money suits filed by the petitioner-bank. The respondents in the suits are the defendants. The challenge in these writ petitions under Article 227 of the Constitution of India is to the orders dated 20th July 2006 and 17th January 2008 passed by the trial Court. As the facts of these three petitions are more or less identical, for the sake of convenience, a reference is made to the facts of the case in Writ Petition No.3100 of 2008. A suit is filed by the petitioner for recovery of a sum of Rs.4,07,168.21/-. According to the case of the petitioner-bank certain shares were pledged by the respondents in favour of the petitioner-bank by way of security for repayment of the amount advanced by the petitioners to the respondents. 3. On 13th March 2006 , an application was made by the respondents seeking a direction against the petitioner-bank to deposit the share certificates with the Court. Further prayer in the said application was that the shares certificates be 3 handed over to the respondents. On 20th July 2006 , the trial Court disposed of the said application. The petitioner-bank was directed to return the share certificates to the respondents. By the said order the respondents were directed to deposit the principal amount claimed by the petitioner-bank in the Court. An application was made by the petitioner-bank seeking a direction that the respondents be directed to deposit the total amount due and payable on the date of institution of the suit. The respondents made an application under Order XXXIX, Rule 11 of the Code of Civil Procedure, 1908 for initiating action against the petitioner for non-compliance with the earlier order. The application made by the petitioner-bank for direction/clarification was rejected on 25th January 2007. By further order dated 17th January 2008, the trial Court directed the petitioner to deliver the share certificates to the respondents. The trial Court directed the respondents to sell the shares and directed that priority should be given to repay the loan amount. The point of interest was kept open. 4. The learned counsel appearing for the petitioner submitted that the share certificates were handed over to the petitioner-bank by the respondents by way of security. The learned counsel appearing for the petitioner-bank submitted that by way of concession the petitioner was willing to return share certificates provided the respondents were willing to pay the entire amount inclusive of the interest due and payable by them on the date of institution of the suit. She stated that the said offer was not accepted by the respondents. On instructions she submitted that the petitioner is ready and willing to deposit the share certificates with the trial Court and through an officer appointed by the trial Court the shares 4 may be sold in open market. It was submitted that the sale proceeds be deposited with the trial Court which can be invested till the disposal of the suit. 5. The party in person submitted before the Court that the bank ought to have sold the shares earlier and as the shares were not sold earlier , the respondents have suffered loss. He stated that before the shares are sold, certain formalities will have to be completed. When a query was made by this Court as to whether the respondents are willing to deposit the entire amount payable to the petitioner- bank on the date institution of the suit including interest, the party in person expressed inability to deposit the amount. A suggestion was made by this Court that the petitioner can be directed to deposit the shares with the trial Court and the trial Court can be directed to dispose of the shares in open market through an officer of the Court. The said suggestion is not acceptable to the party in person. 6. It will be necessary to consider the operative part of the order dated 17th January 2007. The operative part reads thus: “Application is partly allowed. Plaintiff is directed to deliver the share certificates to be defendant with direction to him (defendant/borrower) to sell it and priority should be given to repay the loan amount. Point of interest is kept open for the either side.” 7. The effect of the said order is that the petitioner-bank will have to hand over the share certificates of the pledged shares to the respondents with a direction to the respondents to sell the shares. Once the petitioner bank delivers the share certificates to the defendants, the petitioner bank will not have any 5 control over the shares which have been pledged in favour of the petitioner bank by way of security for repayment of loan. The petitioner bank will not have any control over the process of sale of the shares. The learned trial Judge has observed that priority should be given by the respondents to repay the loan amount. There is no direction issued by the trial Court that the entire sale proceeds will be appropriated towards the claim of the petitioner-bank. According to the petitioner-bank the shares were pledged with the petitioner by way of security. Even before suit is decided on merits, the direction of the trial Court to the petitioner-bank to hand over the shares to the defendants in the suit was ex- facie illegal. Therefore, the impugned orders will have to be quashed and set aside. The reasonable suggestions made by the petitioner have not been accepted by the respondents. 8. If the respondents hereafter deposit the amount due and payable to the petitioner, as reflected in prayer clause (a) of the plaint, the petitioner will have to return the shares to the respondents as a substantial part of the claim of the petitioner bank will be secured. 9. Hence, I pass the following order: : O R D E R : (a) The impugned orders are quashed and set aside. (b) If the respondents deposit the amounts set out in prayer clause (a) of the plaints with the trial Court, the petitioner-bank shall return the pledged shares to the respondents within a period of two weeks from the 6 date on which intimation of the deposit of the amount is given to the petitioner-bank. (c) The writ petitions are disposed of in above terms with no orders as to costs. (A.S.OKA,J)