IMPORTANT POINT
If a remedy is not available to constituent before Tribunal, civil court will not non-suit plaintiffs only on ground that subject matter of suit may be connected with bank’s claim which bank may seek to enforce before Tribunal.

Arijit Banerjee, J.—In the above suit, the plaintiffs/petitioners have claimed, inter alia, declaration that a deed of mortgage dated 31st May, 2013 executed by the plaintiffs in favour of the defendant nos. 1 and 2 as also a personal guarantee dated 1st February, 2013 executed by the plaintiff no. 1 in favour of the defendant nos. 1, 2 and 3 are null and void and for consequential reliefs of delivery up and cancellation of the said documents and perpetual injunction restraining the defendants from claiming any right under the said documents. In the suit the present application has been taken up praying for the following orders:-

“(a) Injunction restraining the respondent nos. 1 and 2 or any of them from claiming any right under the Deed dated 31st May, 2013;

(b) Injunction restraining the respondents from giving any effect to the deed dated 31st May, 2013 or the personal guarantee dated 1st February, 2013;

(c) Injunction do issue restraining the respondents, their men, agents and/or servants from taking any coercive steps in respect of the personal guarantee dated 1st February, 2013 and Security Deed dated 31st May, 2013;

(d) Ad interim orders in terms of prayer above;”

The petitioners’ case:-

2. The proforma respondent is a closely held limited company engaged in the business of manufacture and sale of rubberized products. The petitioner nos. 1 and 2 are the directors/promoters of the proforma respondent (hereinafter referred to as ‘the company’).

3. The respondent nos. 1, 2 and 3 are amongst the existing bankers of the company.

4. From time to time, the company obtained credit facility from the respondent no. 1. Such credit facility was secured by way of mortgage by deposit of title deeds of an immovable property situated at 122-130 S.M. Bose Road, Panihati Municipality, North 24 Parganas. Further, a personal guarantee was also executed in favour of the respondent no. 1 by Debabrata Bose, a director of the company. Security was also created in favour of the respondent no. 1 by way of hypothecation of stocks, book debts, current assets and plant and machinery of the company. After the demise of the said Debabrata Bose, a corporate guarantee was furnished by one Cachet Waterproof Pvt. Ltd. in the year 2009.

5. The company also obtained financial assistance from the respondent no. 2 which was secured by way of hypothecation of stocks, book debts, current assets and first charge on the company’s plant and machinery as well as pari passu charge/mortgage on the company’s properties situated at Panihati.

6. The financial assistance provided by the respondent no. 3 was secured by way of mortgage of the company’s immovable properties situated at S. M. Bose Road, Panihati, ranking pari passu with each of the respondent banks.

7. Value of the said property of the company was approximately Rs. 40.00 crores as in May, 2008 as would appear from a report submitted by an empanelled valuer of the respondent no. 1 (page 92 of petition). Over the years the value of the said property has obviously appreciated to a great extent and is enough to cover the liability of the company to the respondent banks.

8. In the year 2008-09 recession hit the global market resulting in working capital crisis for the company. To overcome such crisis the company sought for help and support from the respondent banks by way of restructuring of existing debts and disbursement of fresh working capital. The same was proposed to safeguard both the interests of the company as well as the interests of the banks so that the company could continue to carry on business and pay all the dues of the banks.

9. In spite of requests made by the company, timely steps were not taken by the respondent nos. 1 and 2 and the financial condition of the company deteriorated so much that the bank account of the company with the respondent no. 2 was declared as Non-Performing Asset (in short NPA) on 25th December, 2010 and the bank account of the company with the respondent no. 1 was decla