1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL (LODGING) NO.765 OF 2010 IN SUIT NO.1044 OF 1992 .Kiritkumar K Patel, . Appellant. (Orig.Deft No.3) Vs. State Bank of Hyderabad and ors ... Respondents. Mr V.M.Bharadwaj, for the appellant. Mr. Umesh Shetty along with Mr Vivek S Sawant i/b K.KKaushik, for respondent no.1. CORAM : D.B.BHOSALE & U.D.SALVI, JJ. DATED : 02/05/2011. P.C. 1. Admit. Mr.Shetty, learned counsel, waives service for respondent no.1. By consent of learned counsel for the parties, Appeal is heard finally. 2. In this appeal, the appellant has impugned the order dated 15.6.2009 passed by the learned Single Judge disposing of Suit No.1044 of 1992 filed by respondent no.1-Bank. The suit was filed against three defendants, namely, Lkay International, Lalit B. Arora and Kiritkumar Patel, being defendant nos 1 to 3. The suit was initially disposed of by the learned Single Judge vide order dated 20.3.1997, whereby a decree in terms of T 2 prayer clauses (a),(b),( c), (d) and (h), of paragraph 23 of the plaint against all the defendants, except the heirs of defendant no.2, was passed. Insofar as the legal heirs of defendant no.2 are concerned, the suit was kept pending and it was observed that the suit would proceed only against surviving heirs of defendant no.2 – - Lalit Jain. This decree (20.3.1997) was challenged in Appeal, being Appeal No.1122 of 1999, by original defendant no.3.- i.e. Kiritkumar Patel. The appeal was allowed vide judgment and order dated 21.4.2007 setting aside the decree dated 20.3.1997 and the matter was remanded to the learned Single Judge to dispose of Suit No. 1044 of 1992 in accordance with the provisions of law. The suit was, accordingly, placed before the learned Single Judge on15.6.2009 when none appeared on behalf of all the plaintiffs and the suit was disposed of by the following order. “1. This suit was transferred to Debt Recovery Tribunal at Mumbai and registered as T.A.No.234 of 2001. 2. It appears that by compromise and order dated 10.10.2003 the matter has been settled and disposed of there. Therefore, nothing survives as suit itself is already disposed of. Suit be treated as disposed of accordingly.” 3. It appears that in view of section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, “DRT”) all pending suits in this court filed by the financial institutions for recovery of debts above ten lakhs were 3 transferred to the DRT. Accordingly, Suit No.1044 of 1992, insofar as the legal heirs of defendant no.2 are concerned, was also transferred to the DRT in 2003 itself (T.A.No.234 of 2001). Before the DRT the plaintiffs prayed for withdrawal of the suit on receiving Rs. 38,64,442.59 as and by way of full and final settlement. Accordingly, the suit (T.A. No.234 of 2001) was disposed of as withdrawn vide order dated 10.10.2003. As stated earlier, when the pending suit was transferred to the DRT it was pending only against the legal heirs of defendant no.2. In other words, Suit No.1044 of 1992 was not pending against defendant nos 1 and 3 when it was transferred to the DRT. Appeal No.1122 of 1999, filed by defendant nos 1 and 3, was in fact pending against the decree dated 20.3.1997 before the Division Bench. 4. Mr.Shetty, learned counsel for the appellants, i.e. defendant nos 1 and defendant no. 3, submitted that since none appeared for these plaintiffs on 15.6.2009 before the learned Single Judge, the decree was passed. From bare perusal of the facts, it is clear that when the order dated 10.10.2003 was passed by the DRT, the appellants (defendant nos 1 and 3) were not party to the said suit (T. A No.234 of 2001) and hence it cannot be stated that the suit was disposed of as compromised or withdrawn against these appellants-defendants. 5. It appears that the appellant, in the backdrop of the facts mentioned above, had taken out Notice of Motion No.2781 of 4 2009 for setting aside the order dated 15.6.2009 passed in the suit. The Notice of Motion was, however, dismissed with liberty to the appellant-defendant no.3 to challenge this order by filing appropriate proceeding and hence the appellants have filed the present appeal. Having considered the sequence of events and overall facts and circumstances of the case, in our opinion, this appeal deserves to be allowed. We are satisfied that insofar as the present appellants (defendant nos 1 and 3) are concerned, the suit, after its restoration vide judgment and order dated 21.4.2007 in Appeal no.1122 of 1999, was pending. As a matter of fact, in view of section 31 of DRT Act the suit ought to have been transferred to the DRT for its hearing on merits. Learned counsel for the parties have fairly stated that we need not record further reasons for passing such order. Hence, we are disposing of the appeal by the following directions: (i) The order impugned in the Appeal (dated 15.6.2009), is set aside. The suit is restored to file. (ii) Office is directed to transfer the said Suit to the DRT for its consideration on merits. The DRT shall deal with the suit on merits in accordance with law. All contentions of the parties including their right to withdraw the suit and/or to oppose withdrawal of the suit are kept open. It is also open to the parties to file application/s for appropriate relief if they so desire. If the suit/papers are already transferred even in respect of the present appellants by the registry, the DRT may 5 deal with the said suit on merits. Appeal is, accordingly, disposed of. No costs. (U.D.SALVI,J.) (D.B.BHOSALE,J.)