( 1 ) PLAINTIFF, Bank of India had filed a suit for recovery of Rs. 24,75,045. 02 against tour defendants namely, (1) M/s Luk Auto Ancillary. (India) Ltd. , (2) L. N. Raina, (3) Vijay Kumar Mundhra and (4) M/s, Globe Motors Ltd. Defendant No. l being the principal debtor and defendants No, 2, 3 and 4 as its sureties. Defendants No. 1 and 2 and defendants No, 3. and 4 filed two separate written statements contesting the suit. lssues were settled Defendants No. 1 and 4 had gone in liquidation and were represented by, official Liquidator on various dates. However, during trial defendants did not appear. Plaintiff led ex pane evidence and vide Judgment dated December 3, 1984 the suit was decreed in the sum of Rs 24,75,042. 02 with costs and future interest at the rate of 19. 25% per annum. After the aforesaid decree was passed defendant No. 3 has filed an application (IA No. 3542/85 under Order 9 Rule 13 CPC) and later on defendant No. 2 also filed similar application (IA No. 4076/85) both under Order 9 Rule 13 CPC for setting aside the exparte decree against them. Defendant No. 2 having died, Shri Chand Raina, his son, the only LR was substituted for him. These applications remained undisposed of and in the meantime, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the RDB Act) came into force. The proceedings have not yet been transferred to the Debt Recovery Tribunal established under RDB Act and an objection has been taken on behalf of defendant No. 3 that as defendants No. 1 and 4 have gone into liquidation the proceedings are not liable to be transferred to the Debt Recovery Tribunal. Subsequently another IA No. 1179/2000 under Section 151 has also been filed by defendant No. 3 to restrain the plaintiff from proceeding with the execution proceeding pending before the Debt Recovery Tribunal and for stay of those execution proceedings for the reasons stated therein.

( 2 ) LEARNED counsel for the parties have addressed arguments on the question whether, the proceeding now pending here are or are not liable to be transferred to the Debt Recovery Tribunal. Learned counsel for defendant No. 3 has contended (1) that defendants No. 1 and 4, the two companies had gone in liquidation and the suit could not have been continued without the permission of the Company Court under Section 446 of the Companies Act, 1956 and that permission had been obtained in respect of one such company and not in respect of the other and as such the decree passed is illegal and void. (2) The present proceedings are not liable to be transferred under Section 31 of the RDB Act to the Tribunal. Firstly because proceedings under Order 9 Rule 13 CPC are not proceedings contemplated under Section 31 of the RDB Act. Secondly because notwithstanding the non obstante clause contained in Sections 18 and 34 of the RDB Act, the provisions of Section 446 of the Companies Act, which is a special law have overriding effect on the provisions of this RDB Act. The proceedings are to be taken before the Company Court in view of Section 446 of the Companies Act. (3) The liability of defendant No. 3 as surety is co-extensive with that of defendant No. 1, the principal debtor. However, the actual liability that may be found recoverable from defendant No. 1 could be determined by the Company Court in winding up proceedings and as such at present there is no certain amount that could be recovered from defendant No. 3 and as such the execution against him could not proceed. (4) That in view of the provisions of Rule 118 (3) of the Company (Court) Rules the interest in the decree could not be awarded more than at the rate of 4% per annum and the interest awarded at the rate of 19. 25% per annum is illegal and without jurisdiction. The decree is thus illegal and unenforceable. He has relied on Mayur Syntex Limited v. Punjab and Sind Bank 1997 IVAD (Delhi) 821,industrial Credit and Investment Corporation of India Ltd. v. Srinivasan Age