Arvind Vasudeo Deshmukh Vs. United Western Bank Ltd. and ors. - Court Judgment

Excerpt:
1. this miscellaneous appeal is filed by the appellant/original defendant no. 4 mr. arvind deshmukh being aggrieved by the order dated 18th september, 2003 passed by the learned presiding officer of the d.r.t., nagpur in interlocutory application no. 755/2002 in original application no. 473/2001. by the impugned order, the learned presiding officer dismissed the application made by the appellant in which he had prayed for striking out his name from the array of defendants.2. i have heard mr. deo for the appellant and mr. maniyar for the respondent no. 1 bank. i have gone through the proceedings including the impugned order and, in my view, the learned presiding officer has not committed any error in dismissing the application made by the appellant.3. proceedings reveal that the defendant no. 4 has already filed his written statement and has taken certain defences. thereafter without allowing the matter to proceed in accordance with law and culminate in the final order, suddenly the appellant came out with this application that his name be deleted from the array of parties. this averment is made by him submitting inter alia that no cause of action arose against him, that he was neither borrower nor guarantor to the alleged transaction and that he was not signatory to any of the board resolutions authorizing the other defendants to seek financial assistance from the applicant bank, etc.4. i t is to be highlighted that all the averments made by the appellant in his written statement, so also in the interlocutory application are his defences. however, whether there is cause of action against this defendant or not is to be seen from the averments made by the plaintiff in his plaint and for that purpose, reading of plaint is necessary. having gone through the same, this is what, the applicant bank has stated in para no. 5.3. the said averment can be given below for the sake of convenience: 5.3. the applicant submits that the defendant no. 1 was firstly registered as private limited company since 11th march, 1986 and thereafter converted into a public limited company from 7th april, 1987. the defendant nos. 2 to 5 are the directors of the defendant no. 1 whereas the defendant nos. 6 to 8 are the guarantors for the loan facilities availed by the defendant no. 1 company. the director shave also executed the necessary documents as guarantors in personal capacity.5. thus, the case of the applicant bank as is revealed from this paragraphs is that the defendant nos. 2 to 5(including the present appellant who is arraigned as defendant no. 4) are the directors of the defendant no. 1 company and all these defendants are the guarantors for the loan facilities availed by the defendant no. 1 company. i t is further submitted by the bank that this director(defendant no. 4 namely the present appellant) has also executed the necessary documents as guarantor in his personal capacity.6. in para no. 7 of the original application, where grounds of relief are stated, it is averred that the defendant nos. 1 to 8 have failed to repay jointly and severally the debts due to the applicant bank in conformity with the terms and conditions of the cash credit and letter of credit facility and, therefore, the bank is entitled for recovery certificate and other reliefs as prayed for against the defendant nos.1 to 8. in para no. 7 in clauses(b),(c),(d) and(e) also, reliefs are prayed against the defendant nos. 1 to 8 including the present appellant. therefore, on this background, it cannot be said that cause of action is not revealed as against the defendant no. 4. i t is very much revealed and, therefore, it will be unfair to decide this application by cutting short the process of the trial. as such, written statement is already filed by the appellant and the trial is ripe for hearing and at this juncture, the appellant has come before the tribunal praying for deleting his name, which also smacks of dishonest purpose of protracting the trial. the learned presiding officer, therefore, correctly dismissed the application made by the appellant. i do not see any reason to interfere in the said order. accordingly, following order is passed:

Judgment:
1. This miscellaneous appeal is filed by the appellant/original defendant No. 4 Mr. Arvind Deshmukh being aggrieved by the order dated 18th September, 2003 passed by the learned Presiding Officer of the D.R.T., Nagpur in interlocutory application No. 755/2002 in Original Application No. 473/2001. By the impugned order, the learned Presiding Officer dismissed the application made by the appellant in which he had prayed for striking out his name from the array of defendants.

2. I have heard Mr. Deo for the appellant and Mr. Maniyar for the respondent No. 1 Bank. I have gone through the proceedings including the impugned order and, in my view, the learned Presiding Officer has not committed any error in dismissing the application made by the appellant.

3. Proceedings reveal that the defendant No. 4 has already filed his written statement and has taken certain defences. Thereafter without allowing the matter to proceed in accordance with law and culminate in the final order, suddenly the appellant came out with this application that his name be deleted from the array of parties. This averment is made by him submitting inter alia that no cause of action arose against him, that he was neither borrower nor guarantor to the alleged transaction and that he was not signatory to any of the board resolutions authorizing the other defendants to seek financial assistance from the applicant Bank, etc.

4. I t is to be highlighted that all the averments made by the appellant in his written statement, so also in the interlocutory application are his defences. However, whether there is cause of action against this defendant or not is to be seen from the averments made by the plaintiff in his plaint and for that purpose, reading of plaint is necessary. Having gone through the same, this is what, the applicant Bank has stated in para No. 5.3. The said averment can be given below for the sake of convenience: 5.3. The applicant submits that the defendant No. 1 was firstly registered as private limited company since 11th March, 1986 and thereafter converted into a public limited company from 7th April, 1987. The defendant Nos. 2 to 5 are the Directors of the defendant No. 1 whereas the defendant Nos. 6 to 8 are the guarantors for the loan facilities availed by the defendant No. 1 company. The Director shave also executed the necessary documents as guarantors in personal capacity.

5. Thus, the case of the applicant Bank as is revealed from this paragraphs is that the defendant Nos. 2 to 5(including the present appellant who is arraigned as defendant No. 4) are the Directors of the defendant No. 1 company and all these defendants are the guarantors for the loan facilities availed by the defendant No. 1 company. I t is further submitted by the Bank that this Director(defendant No. 4 namely the present appellant) has also executed the necessary documents as guarantor in his personal capacity.

6. In para No. 7 of the Original Application, where grounds of relief are stated, it is averred that the defendant Nos. 1 to 8 have failed to repay jointly and severally the debts due to the applicant Bank in conformity with the terms and conditions of the cash credit and letter of credit facility and, therefore, the Bank is entitled for recovery certificate and other reliefs as prayed for against the defendant Nos.

1 to 8. In para No. 7 in Clauses(B),(C),(D) and(E) also, reliefs are prayed against the defendant Nos. 1 to 8 including the present appellant. Therefore, on this background, it cannot be said that cause of action is not revealed as against the defendant No. 4. I t is very much revealed and, therefore, it will be unfair to decide this application by cutting short the process of the trial. As such, written statement is already filed by the appellant and the trial is ripe for hearing and at this juncture, the appellant has come before the Tribunal praying for deleting his name, which also smacks of dishonest purpose of protracting the trial. The learned Presiding Officer, therefore, correctly dismissed the application made by the appellant. I do not see any reason to interfere in the said order. Accordingly, following order is passed: