1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1415 OF 2007 ICICI Bank Ltd. .. Petitioner Vs. Prabha Maheshwari & Ors. .. Respondents Mr.Kalpesh Parekh i/b M/s.Pragna Thakkar and Co. for the petitioner Mr.K.S.Jain for respondent nos.1, 4 and 6 CORAM : J.N.PATEL CORAM : J.N.PATEL CORAM : J.N.PATEL & & & K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATED : 29TH JULY, 2008 DATED : 29TH JULY, 2008 DATED : 29TH JULY, 2008 P.C.: 1. Heard the learned counsel for the parties. 2. The petition can be disposed of at the stage of admission. The petition is preferred impugning the order passed by DRAT which confirms the order passed by DRT-II, Mumbai. 3. The only issue which is raised before us is that part of the order passed by DRT-II on 2.7.04 2 which was challenged before the DRAT is not in consonance with the principal of claim of interest to which the petitioner is entitled. It is submitted that though the DRT-II found the respondents / original defendants jointly and severally liable to pay to the petitioner / applicant a sum of Rs.15 lacs, it has restricted the claim of interest from 19.08.1992 till the date of filing of the original application with a rider that the said amount shall be adjusted against the liability of the Bank in Small Causes Suits No.LEC 125/139, 126/140 both of 1994 and 3/4 of 1995 filed by respondents / Defendant nos.1 to 5 and the balance if any, be recovered subsequently. 4. The DRAT while dealing with the appeal found that the sanction of the loan was not pure and simple banking transaction and that the bank was in possession of certain premises belonging to the debtor i.e. M/s.Karnani Buildings and the original defendant nos.1 to 5 and their family members had given the said premises to the bank on rent/Leave and Licence basis and the rentals were security for repayment of the loan in question and 3 that the loan in fact was agreed to be sanctioned as part of lengthy negotiations aimed at clearing outstanding of sister concerns of the family of defendants who were indebted to the bank and granting additional premises to the bank and it is in this backdrop that DRAT did not entertain the appeal and concurred with the finding of the DRT-II in the impugned order as just and proper. The DRAT under the impugned order further found that in so far as the claims of the respondents / debtors is concerned, they are required to settle by different forum i.e. Court of Small Causes and the dispute which is pending before the DRAT and Small Causes Court, as it belongs to distinct Jurisdiction and therefore, the claims of the petitioner bank and the set off claim of the respondent debtor will have to be tried separately as DRAT lacks Jurisdiction to entertain the claims which are before the Small Causes Court. 5. It is not disputed that the suit filed by the respondents / debtors in Small Causes Court against the petitioners have been dismissed. We may make it clear that in so far as loan 4 transaction is concerned, it has to be treated as an independent transaction and has nothing to do with the letting of the premises and the rental value as it is a separate contract though the petitioner bank might have shown some consideration in the matter of advancing the loan being tenant of the respondent debtor. That by itself would not deprive the petitioner bank from claiming future interest on the amount due and payable. 6. Our attention has been brought by the learned counsel for the respondents / debtors to the judgment and order passed by five Judge Bench of the Supreme Court in group of matters when the Supreme Court has clearly laid down that the further interest in matters relating to recovery of loan filed by banking and financial institution will be out of the purview of Order 34 Rules 2, 3, 4 and 11 of CPC as sub section 20 of section 19 confers a discretion on the Tribunal to award interest on an application being filed as it thinks fit to meet the ends of justice as these tribunals are constituted under the provisions of the Recovery of Debts (Due to Banks and Financial 5 Institutions) Act, 1993. 7. Therefore, in our view, the impugned order deserves to be quashed and set aside as a result of which the petitioners would be entitled to further interest at the same rate i.e. 16.5% per annum with quarterly rests from the date of the suit till the amount is recovered from the respondents / debtors. Needless to state that if the respondents want to claim any adjustment or set off, they can do so by filing appropriate application in the proceedings to be initiated for execution of the recovery certificate. 8. Petition stands disposed of accordingly with no order as to costs. ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( K.K. TATED, J ) ( K.K. TATED, J ) ( K.K. TATED, J )