Eureka Firbes Limited vs Allahabad Bank & Ors

3. Appellant is a company duly incorporated under the provisions of the Companies Act, 1956, while Respondent No. 1, Allahabad Bank is a body constituted under the Banking 2 Companies (Acquisition and Transport of Undertakings) Act, 1976. Respondent No. 3 in the present appeal is a proprietorship firm of Respondent No. 2. The appellant company is stated to have entered into an agreement on 16th August, 1983 with respondent Nos. 2 & 3, granting licence in their favour to use premises at Jainkunj at Goragachha Road, Kolkata (hereinafter referred to as `the premises') for a consideration of Rs.12,000/- payable to the appellant, along with the plant and machinery as well as their trade mark "OSBOURNE". It is further the case of the appellant that they had no knowledge of the fact that, respondent Nos. 2 & 3 had availed certain cash credit facility and had hypothecated their raw materials, semi-finished and finished products to Bank. However, on or about 28th February, 1987, the said respondents had requested the appellant to take over the possession of the said premises along with the closing stock lying therein. This was so requested because respondent Nos. 2 & 3 had not paid the licence fee for the use and occupation of the premises, goods etc. as agreed and further vide letter dated 23rd July, 1987, they stated that appellant could sell the stocks as well as 3 lathe machine lying in the factory premises and adjust the sale proceeds thereof towards the arrears of licence fee. After taking possession of the factory premises, the appellant prepared an inventory of the stock in possession and as alleged by them, they had no knowledge that these stocks had been hypothecated by the said respondents in favour of the Bank. The letter dated 7th August, 1987 has been annexed by the appellant in support of such averment. It appears from the record that the respondent Bank vide its letter dated 21st August, 1987 wrote to respondent Nos. 2 & 3 raising an issue as to how the possession of the stocks and machinery was given to the appellant. This was done in response to the letter of respondent Nos. 2 & 3 dated 18th August, 1987 and copy thereof was sent to the appellant while referring to the letter dated 7th August, 1987 addressed by the appellants to the other respondents. It will be useful to reproduce the relevant extract of the letter dated 21st August, 1987 which reads as under:

5. The Bank filed a suit in the District Court at Alipore against the present appellant and respondent Nos. 2 & 3 claiming a sum of Rs.22,11,618.62. In this suit, the present appellant filed a written statement making a preliminary objection that there was no privity of contract between the Bank and the present appellant. That it was not a borrower of the Bank and had no dealings with them as such, the suit was barred for misjoinder of parties and in fact no suit could lie against the present appellant. The plea of suit being barred by time, the principles of estoppel, waiver and acquiescence was also taken. It was stated on merits, that neither they were aware of any transaction between plaintiff Bank and respondent Nos. 2 & 3 nor of any charge over the machinery and equipment etc. The appellant denied the allegations made against them. Most of the paragraphs were denied for want of knowledge and emphasis was laid only on the above stated two averments. Appellant also averred that the Bank was trying to cover up lapses of its own officials by pressurizing them. It could not have accepted, as security, the factory or machinery as it was owned by the appellant and it had not given any consent for 6 that purpose. This suit came to be transferred after the provisions of the Recovery Act came into force in the year 1994. Upon transfer it was numbered as T.A. No. 15/1994. The appellant was served with a notice from the Tribunal and it appointed one M/s Mallick and Palit as its Advocate to appear and pursue the case on its behalf. The appellant did not appear before the Tribunal and after some time the proceedings were carried on in their absence. The evidence was recorded and finally an ex-parte judgment was passed against the appellant on 15th June, 1995. In furtherance to the ex-parte judgment, a Recovery Certificate No. 48 of 1995 was issued by the competent authority under the provisions of the Act on 30th June, 1995. The appellant claims to have taken steps for setting aside the ex-parte judgment. They filed a writ petition before the High Court of Kolkata, (being Writ Petition No. 1804 of 1995), challenging the constitutional validity of the provisions of the Recovery Act and also prayed for stay of execution of the ex-parte judgment dated 15th June, 1995. An interim order dated 3rd November, 1995 was passed in favour of the appellant directing that the execution proceedings should go on, however 7 no final order be passed without the leave of the Court. The Tribunal vide its Order dated 4th March, 1996, appointed a receiver to prepare an inventory of hypothecated goods and a warrant of attachment was also issued. The High Court of Kolkata, again on application filed by the appellant directed the receiver only to make inventory of the goods and not to take any further action. During the pendency of these proceedings, the Recovery Officer upon further application by the respondent Bank, directed the receiver to make inventory of all the properties vide its Order dated 17th August, 1996. This order was challenged by the appellant before the Calcutta High Court which stayed further proceedings.

6. According to the appellant, it was advised to initiate proceedings to set aside the ex-parte decree and Recovery Certificate and hence an application was filed before the Tribunal for recalling the ex-parte order. Along with this, an application for condonation of delay was also filed. Consequent upon the dismissal of the application for condonation of delay, the appellant filed an appeal before the Debt Recovery Appellate Tribunal (for short the `Appellate 8 Tribunal') against the order dated 19th August, 1999, passed by the Tribunal. The same was also dismissed by the Appellate Tribunal vide its judgment dated 1st June, 2001. This again was assailed before the High Court under Article 227 of the Constitution of India. The same was also dismissed by the High Court of Kolkata vide Order dated 28th November, 2001. Still unsatisfied, the appellant filed a Special Leave Petition before this Court, being SLP (C) No. 7883 of 2002 against the Order of the High Court of Kolkata which was dismissed as withdrawn by this Court vide Order dated 26th April, 2002. In other words, the Order of the Tribunal declining to set aside the ex-parte decree attained finality. The Revision Petition filed by the appellant before the High Court of Kolkata also came to be dismissed finally vide Order dated 2nd April, 2003. In furtherance to its zeal to somehow get the ex-parte decree set aside, the appellant preferred an appeal before the Appellate Tribunal against the order of the Tribunal dated 15th June, 1995. The Order dated 16th April, 2004 of the Appellate Tribunal was challenged before the learned Single Judge of the High Court. In those proceedings, an application for amendment to bring the 9 subsequent events on record, was filed which was dismissed by the learned Single Judge vide Order dated 11th June, 2004. Against this Order, an appeal was filed before the Division Bench of Kolkata High Court which also met the same fate. However, the Division Bench while dismissing the appeal observed that the Order passed by the learned Single Judge was correct in law but it would not prevent the appellant from resorting to any remedy which is available to it in accordance with law.

9. The challenge to the impugned orders is inter alia on the ground that, Tribunal had no jurisdiction to entertain such an application filed on behalf of the Bank as there was no privity of contract between the appellant and the Bank. Besides the issue of jurisdiction, the stand taken is that the Bank had not proved on record by way of any evidence that anything is due to it from the appellant. All the witnesses examined on behalf of the Bank have stated nothing to the above mentioned effect. In any case, in the subsequent proceedings the decree should have been set aside, as nothing in law could be stated to be due 12 from the appellant. In the suit, which was decreed ex-parte by the Tribunal on 15th June, 1995, it was specifically averred in the plaint that, Respondent No. 3 along with other defendants illegally, erroneously, arbitrarily and whimsically had taken possession of the entire stock, machinery, equipments etc. without knowledge of the respondent Bank. The respondents had not allowed inspection of the factory and verification of the stock and other requisite elements. In fact, the appellant has misguided the Bank while informing vide their letter dated 18th August, 1987, that the workers had forcibly occupied the factory. Reference was also made to the fact that some stocks, plant and machine belonging to respondents had been given to the appellant for sale etc. as per the agreement between the parties. The goods, stocks were hypothecated to the Bank and according to the Bank, all the defendants in the suit were liable to pay the dues of the Bank. On this premise, the Bank prayed for decree for the entire amount and also interest @ 18.05% per annum. A specific prayer was made that the Bank has a valid and subsisting charge over the properties of defendant Nos. 1 & 2 for the due repayment to it. A decree for realization of 13 hypothecated goods by and under the direction of the Court was also prayed for. We have already noticed above that there was denial of the allegations made in the plaint.

Merits of the case relatable to the factual matrix

10. The main stand of the appellant was in relation to the jurisdiction and lack of knowledge of the fact that the goods in stock were hypothecated to the Bank along with the plant and machinery. The two important documents, dated 16th August, 1983 and 28th February, 1987, which have been placed on record, are of some significance. The agreement dated 16th August, 1983 states the conditions of the leave and licence agreement between respondent Nos. 2 & 3 and the appellant. It was indicated therein that they could use the plant and machine in the premises and it was for a period of three years with a deposit of Rs. 1,00,000/- and Rs.12,000/- per month as fee. Under Clause 6, the stocks at the relevant time were to be sold for a consideration of 0.75 lakhs and they were entitled to use the trade mark. However, vide letter dated 28th February, 1987, which is after the expiry of a period of more than three years, it 14 was indicated by Respondent Nos. 2 & 3 to the appellant that, they wanted to give back possession of factory and there were stocks of about Rs.7,00,000/- which included raw material, semi-finished and finished goods, lathe worth Rs.1,15,000/- which could be sold to a subsequent licencee. Relevant paragraphs of this letter can be usefully reproduced at this stage:

11. Another letter written by Respondent Nos. 2 & 3 to the appellant on 23rd July, 1987 referred to certain telephonic conversation. It was specifically recorded in it that possession of the factory will be handed over on 31st July, 1987. It was also stated that there was financial crisis and that the stocks 15 worth Rs.7,00,000/- and the lathe worth Rs. 1,15,000/- etc. could be sold and they will not be able to pay any licence fee in future. On 7th August, 1987, the possession of the premises was taken by the appellant and a list had been prepared, copy of the list placed on record shows the physical stock as on 7th August, 1987 and it contains bearings, plumber block, bearing of milling MC, GM Brass and Segment, old Osborn, C.I. of Milling M.C., C.I. components, AC IMCA machinery etc. It is interesting to note that all these correspondences and conversations between the parties had been without any intimation to the respondent Bank. In fact, all this had been done behind the back of the Bank. Besides this, the Bank had led oral and documentary evidence in support of its claim. The Bank had written the letter dated 21st August, 1987 in response to the letter of Respondent Nos. 2 & 3 dated 18th August, 1987, but the letter dated 18th August, 1987 has not been placed on record. However, vide letter dated 21st August, 1987 copy whereof was sent to the appellant as well, the bank had informed them that it had given the financial assistance to respondent Nos. 2 & 3 and the Bank was having charge over 16 the stocks and machinery which had been hypothecated to the Bank. The Bank further expressed surprise as to how the appellant had taken possession of the unit. Another relevant aspect of the matter would be the conduct of the present appellant. We have serious issues that the appellant, after taking possession of the premises, had not come to know about the goods being hypothecated to the Bank. Advertisement for the sale of machinery was issued as late as on 12th August, 1988. In other words, they had sold goods, even machines, like CTC at a throw away price, even after having complete knowledge about the hypothecated goods. Thereafter, an ex- parte decree was passed, however they did not take any steps to get the same set aside, except when a recovery certificate had been issued by the competent authority. Thereafter, their prayer for setting aside ex-parte decree was rejected consistently by all the courts. When the High Court of Kolkata was dealing with the Revision Petition filed against the Order dated 1st June, 2001, passed by the Appellate Tribunal, the Court had specifically noticed the conduct of the appellant and had observed as under:-

13. The application for setting aside the ex-parte decree had been filed by the appellant along with an application for condonation of delay in filing the said application. However, the application for condonation of delay was rejected and subsequently the ex-parte decree was not set aside. This order of the Tribunal was neither interfered by the High Court nor by this Court in a Special Leave Petition preferred by the 19 appellant. In view of the observations made by the High Court in the order, the appellant filed another application for setting aside the decree on the ground that the Tribunal had no jurisdiction. The said application came to be allowed by the Appellate Tribunal which accepted the contention raised on behalf of the appellant. The reasoning recorded in the judgment of the Tribunal was that, it was a claim for damages in tort and was not a debt, and also that it was beyond the scope of the jurisdiction vested in the Tribunal under Section 17(1) of the Recovery Act, as there were insufficient allegations or evidence. No liability in terms of the debt can be fastened on the appellant. This reasoning of the Tribunal was set aside by the High Court of Kolkata in the impugned judgment and observed that, even claim for damages would fall well within the jurisdiction of the Tribunal in the facts of the case, and particularly, when the averments remained uncontroverted and no evidence was led by the appellant. The hypothecated goods at the place of business of Respondent Nos. 2 & 3 were there at the time of handing over of the possession of the factory back to the appellant, and this fact can hardly be disputed on record. 20 A finding was recorded in the proceedings that appellant was an intermeddler and there was collusion between the appellant and Respondent Nos. 2 & 3. Based on this finding, it was further held that the case of the Bank was fully covered under the expression "debt", "any liability", "any person" and accordingly, the Court set aside the judgment of the Tribunal. In the light of the facts and circumstances of the case, we are unable to find the stand of the High Court to be erroneous. Of course, to some extent, the entire suit could not have been decreed against the appellant. The respondent Bank was entitled to a limited relief, vis-`-vis, its hypothecated stocks, goods and machinery, if any. It was not even the case of the Bank before the Tribunal that the present appellant was a borrower and in discharge of its final liability towards Bank the entire suit was liable to be decreed. The cause of action in favour of the Bank and against appellant, at best, could be limited to the hypothecated stock and goods, as beyond that, there is no averment in the plaint which would justify grant of any larger relief in their favour. We would shortly discuss the legal aspects as well as the reasoning in law, in this regard. The 21 Bank has examined merely four witnesses in support of its case.

14. Besides the fact that the present appellant had earlier raised all the pleas in their application for setting aside the ex 22 parte decree which was rejected by the Tribunal, High Court as well as this Court, it also needs to be noticed that except making vague denials in the written statement, which they had filed before the Tribunal at the relevant point of time, they had raised no specific or concrete defence in regard to the sale of hypothecated goods by them. The fact, as already noticed, cannot be disputed that the goods in question which were hypothecated or were under the charge of the Bank have been sold by the appellant. The advertisement issued by them clearly shows that they had invited offers for sale of CTC machines and spares, which itself demonstrates that a number of machines and other goods have been sold by them. It is an accepted precept of appreciation of evidence that a party which withholds from the Court best evidence in its power and possession, the Court would normally draw an adverse inference against that party. In any case, the bona fide of such a party would apparently be doubted. The appellant was possessed of best evidence in regard to the goods of which they had taken possession on 7th August, 1987, in fact were hypothecated to the Bank. These goods including machines 23 were sold by the appellant prior and subsequent to the issue of the advertisement dated 12th March, 1988. Thus, the best evidence in this regard, was obviously in appellant's power and possession which they did not produce before the Court despite prolonged litigation. As such, we would have no hesitation in drawing some adverse inference against the appellant in this behalf. Another ancillary factor, which the Court has to take into consideration is that, the value declared by respondent Nos. 2 and 3 in relation to stocks, has not been denied specifically, either in correspondence or in the pleadings by the appellant. In the letter dated 28th February, 1987 value of goods worth Rs. 7,00,000/- and lathe machine worth Rs. 1,15,000/- was alleged to be lying in the factory, in addition to other materials. The inventory which was annexed to the letter of 7th August, 1987 refers to various components, parts, bearings etc. but does not refer to CTC machines. Admittedly, the appellants have sold these machines in furtherance to the advertisement dated 12th March, 1988. In short, an amount which cannot be disputed, as is evident from the documentary and oral evidence on record is, Stock A, Stock lying in the premises, 7 lacs lathe machine, 24 Rs.1,15,000/- CTC machine, as sold by the appellant as per their own version, the CTC machine which was sold by the appellant for a sum of Rs. 1,48,975/-, thus, totaling up to Rs. 9,63,975/-. The respondent Bank would be entitled to receive the interest at the rate of 6% per annum from 14th March, 1988 till the date of payment of the amount. We are awarding the same rate of interest which has been awarded by the Tribunal and was accepted by the Bank.

15. It appears that the Bank is acting in a manner which is ex facie not in consonance with the commercial principles and in a most casual and irresponsible manner. The method in which the financial limits have been sanctioned to respondent Nos. 2 and 3 does not stand to reasoning. Admittedly, respondent Nos. 2 and 3 had no title to the property. What verification was done to the appraisal report has been left to imagination. The conduct of the appellant further creates some suspicion in the mind of the Court. The appellant took no remedial or bonafide steps even after it had admittedly come to know that the goods in question were hypothecated to the Bank. On the contrary, it issued advertisement in March, 1988 for sale of hypothecated 25 goods. On the face of this fact, they had no preferential right to sell the goods. In the letter dated 21st August, 1987, they had been informed that possession of the property as well as the goods have been taken unauthorizedly. Even if it is assumed that certain amounts were due to the appellant from respondent nos. 2 and 3 on account of licence fee, still they could not have brushed aside the charge of the Bank over the goods and machinery in question. Also in the alleged leave and licence agreement, dated 16th August, 1983, there was no clause, at least none has been brought to our notice, that the appellant would have charge over the goods and machinery, in the event of default in the payment of licence fee. In other words, the charge of the Bank was binding upon the appellant. The inventory of the goods had been prepared and signed by the parties. In the letter dated 7th August, 1987, these facts were confirmed in furtherance to the correspondence exchanged between the parties from 28th February, 1987.

24. We may notice some of the general expressions used by the framers of law in this provision :

40. This contention of appellant needs to be noticed only for being rejected. In our detailed discussion above, we have clearly held that, the claim raised by the Bank falls well within the ambit and scope of Section 2 (g) of the Recovery Act and the jurisdiction of the Tribunal cannot be ousted on this ground.

Applicability of the principles of public accountability on the facts of the present case :

46. For the reasons afore-recorded, we partially allow this appeal and while modifying the order of the High Court to the extent that, the appellants would be liable to pay to the respondent Bank a sum of Rs. 9,63,975/-. (approximate value of the hypothecated stock sold by the appellants) with interest at the rate of 6% per annum on the above sum during the period 57 from 14th March, 1988, the date of filing of the plaint, to the date of actual realization as originally allowed by the Tribunal.

47. We further direct the Chairman of the Allahabad Bank to examine this case in light of our discussion supra and take appropriate action against erring officers/officials in accordance with law.

48. However, in the facts and circumstances of the case, the parties are left to bear their own costs.