A suit for declaration, injunction, and specific performance instituted by a bank or financial institution against its borrowers is not a suit for recovery of a debt within the meaning of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, and is therefore maintainable before the civil court.

SUBHRO KAMAL MUKHERJEE, J.

( 1 ) THE plaintiff institutes this suit, inter alia, for declaration that the promoters shares as undertaken to be pledged with the plaintiff are charged in favour of the plaintiff for declaration that any pledge and/or charge of shares of the promoters of the defendant No. 1 is void, perpetual injunction restraining the defendants from dealing with, encumbering or creating any third party interest or from creating any charge in respect of the promoters shares of the defendant No. 1 or any assets or securities as mentioned in the loan documents or owned by the defendants as, also, various units of the defendants, mandatory direction upon the defendants to deposit the sale proceeds of their properties, for mandatory direction upon the defendant to pledge shares in favour of the plaintiff as was undertaken by the defendants, for specific performance of pledge convenants, promises, assurances given by the defendants to the plaintiff.

( 2 ) THE said suit was filed, inter alia, with the following allegations:- (A) The plaintiff at the instance of the defendants provided various loans to the defendant No. 1 in accordance with the documents executed and/or securities created therefor. The plaintiff altogether granted five loans/advances to the defendant No. 1. The defendant No. 1 executed agreements from time to time in order to avail the aforesaid loans facilities subject to its compliance with the terms and conditions set out in the agreements as also in the general conditions inasmuch as the general conditions are part of the loan facility agreements. As the defendant No. 1 company failed to pay the dues in time as agreed upon by and between the parties the plaintiff re-called the loans and invoked the guarantees. However, the company went before the BIFR and in terms of the directions of the BIFR the plaintiff granted concessional benefits to the defendant no. 1 firstly on March 20, 1998 and secondly on March 22d, 2000. (B) All the promoters and associates executed undertakings for non-disposal of their shareholdings in the defendant No. 1, which were confirmed by the defendant No. 1. The defendant No. 1 on or about May 10, 2003, in reply to the letter of the plaintiff dated April 22, 2003, intimated that the defendant No. 3 had pledged the shares covered by the non-disposal undertaking and meant for being pledged with the plaintiff with Punjab National Bank Gariahat Branch without any intimation to the plaintiff. The plaintiff upon coming to know of such development, immediately took up the matter with the defendant No. 3 and asked the said defendant to immediately, withdraw such pledge of shares in favour of Punjab National Bank and to re-pledge the same with the plaintiff in terms of the aforesaid specific undertaking. Till date, however, the defendants did not take any step whatsoever. (C) The defendant No. 2 executed a corporate guarantee which has been continuing and confirmed that in case of default on the part of the defendant No. 1, the defendant No. 2 would be treated as the principal borrower and would pay all the dues of the plaintiff. However, contrary to such guarantee, the defendant No. 2 had started to sell off its assets and securities situated at Nagpur and at Andul, Howrah with an eye to defeat and/or delay the recovery by the plaintiff. (D) In spite of the fact that such recovery is not a part of the present suit, the plaintiff claims a declaration that the defendant no. 2 cannot dispose of its properties during the existence of such guarantee.

( 3 ) THE defendant No. 1 appears and files an application inter alia praying for rejection of the plaint of this suit.

( 4 ) MR. Jishnu Saha , learned Advocate, appearing in support of this application, argues that in view of the provision of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (the said Act of 1993 in short), this suit is not maintainable before this Court Mr. Saha draws my attention to Sections 16 and

Click Here to Read the rest of this document