1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2699 OF 2007 Kotak Mahindra Bank Ltd. ..Petitioner. V/s. The Cosmos Co-operative Bank Ltd. & Ors...Respondents. Mr.Kishore Jain i/b. Tushar Goradia for Petitioner. Mr.A.Y.Sakhare, Sr.Advocate i/b. Mr.Yashodhan Sakhare for Respondent No.1. Ms. Dipal G. Mehtaf for Respondent Nos. 2 and 7. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 8, 2008. DATE : JANUARY 8, 2008. DATE : JANUARY 8, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. 3. Rule made returnable forthwith by consent. Mr. Yashodhan Sakhare waives notice for Respondent No.1. Ms.Dipal Mehta waives notice for Respondent No.2 and 7. The other respondents though served, have not appeared. In any case, the Respondent No.1 is the contesting Respondent. Counsel for the Respondent Nos. 2 and 7 states on instructions that they have no objection for allowing this Petition. 2 4. The present Petition takes exception to the Order passed by the Maharashtra State Cooperative Appellate Court, Mumbai dated 6th October, 2007 below Miscellaneous Application No.131 of 2007. The said Application was filed by the Petitioner Bank for impleadment or joinder as party Respondent in the appeal instead and in place of Assignor Banks i.e. ICICI Bank Ltd., State Bank of India and Corporation Bank. This Application has been rejected by the Lower Court essentially on two counts. Firstly, because it would delay the hearing of the Appeal and secondly, because the Petitioner was neither necessary nor proper party to the Appeal filed by the Respondent No.7 pending in that Court. Correctness of this view is put in issue in the present Writ Petition. 5. Having heard Counsel for the parties and going through the records, I have no hesitation in allowing this Petition. In so far as first reason recorded by the lower Court, I am in agreement with the submission made on behalf of the Petitioner that the Petitioner cannot be blamed for not deciding the application filed by the Petitioner as back as on 6th June, 2007. There is nothing on record to suggest that the Petitioner was responsible for protracting 3 the said application. 6. In so far as the question whether the Petitioner can be said to be a necessary or proper party, in my opinion, this will have to be answered in favour of the Petitioner. This is so because, the Petitioner is not claiming to be impleaded as Respondent in the Appeal independently, but in replacement of three banks, who have already been impleaded in the Appeal proceeding by consent of the parties, as noted in the Order dated 6th July, 1999. This aspect has been glossed over by the lower Court. The question whether the Applicant is a necessary or proper party will have to be decided in the context of the claims set up by the three banks, who have already been impleaded as Respondents under Order dated 6th July, 1999. Admittedly, the said Order dated 6th July, 1999 has not been challenged so far. That has attained finality. So long as the said Order operates, the question of examining the issue as to whether the Petitioner is a necessary or proper party does not arise, as the Petitioner is claiming through the said three banks, who have already been impleaded as Respondents. Answering that issue would result in reopening the question, which has already attained finality under the Order dated 6th July, 4 1999. 7. To get over this position, Counsel for the Respondent No.1, who is the Original Petitioner in the dispute filed before the Cooperative Court would contend that the Order dated 6th July, 1999 is passed in his absence and behind its back. The argument that the said Respondent No.1 had never consented for such arrangement, is of no avail. The fact remains that the Respondent No.1, who is party to the Appeal has not chosen to challenge the Order dated 6th July, 1999. In that sense, the Respondent No.1 is bound by the said Order. As mentioned earlier, so long as the said Order operates, presence of three banks in the appeal proceedings cannot be questioned. The Petitioner is claiming through the said banks in the capacity of Assignee. The said three banks according to the Petitioner are assignors of their respective claims against the Respondent No.7(Appellant before the Appeal Court). Thus understood, the Application preferred by the Petitioner ought to have been allowed to avoid multiplicity of proceedings. 8. The Court below has also observed that the Petitioner would be free to resort to other remedies to espouse its cause. The fact that the Petitioner 5 has not resorted to those proceedings cannot be the basis to answer the Application, which was for limited relief. The relief claimed in the Application by the Petitioner was to permit the Petitioner to continue appeal proceedings to espouse its cause for and on behalf of the three banks, who have already been impleaded as Respondents. Inasmuch as, the Petitioner is the assignee of the claims of the said three Banks against the Respondent No.7, who is the Appellant before the Cooperative Appellate Court. 9. Counsel for the Respondent No.1 would then rely on the Order passed by the Debt Recovery Tribunal-III, Mumbai dated 25th October, 2007. The fact that the Order passed by the Debt Recovery Tribunal by consent, does not take the matter any further. The present appeal pending before the Appellate Court will have to be decided in relation to the issues that may arise in the said appeal and not in the context of some proceedings in which consent Terms have been filed and order passed in favour of the Petitioner therein. The Petitioner is entitled to espouse the claims of the three banks who were originally impleaded as Respondents by consent, under Order dated 6th July, 1999. 6 10. Taking any view of the matter, in my opinion, the Order under challenge cannot be sustained. The same is therefore, set aside. Instead, this Writ Petition is made absolute and the Application filed by the Petitioner being Misc. Application No.131 of 2007 is allowed. 11. In view of this Order, the Respondent No.7 to take steps to amend the Appeal record forthwith, so that the Appeal can proceed on its own merits in accordance with the law. 12. Needless to observe that impleadment of Petitioner as party to the pending Appeal is not an expression of opinion either way on the merits of the controversy of the appeal; or shall in any way prejudice the claim of the Respondent No.1 Bank. All questions pending in the appeal are left open to be decided on merits. 13. The Appeal to be decided as expeditiously as possible by the Appellate Court preferably by end of April, 2008, as the Appeal pertains to year 1999. . Ordered accordingly. 7 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)