M.Y. Eqbal, J.

1. This appeal under Clause 10 of the Letters Patent. Is directed against the judgment dated 26-3-98 passed in Company Petition No. 4/94(R), whereby the learned single Judge rejected the application filed by the petitioner/appellant under Sections 40 and 41 of the Industrial Reconstruction Bank of India Act, 1984 as being without jurisdiction and not maintainable.

2. Petitioner/appellant namely, Industrial Development Bank of India initially filed an application under Section 40 of the Industrial Reconstruction Bank of India Act, 1984 (in short Act of 1984) for an order to sale the properties as contained in Schedules A, B and C and for ad interim order of injunction restraining respondent No. 1 M/s. Magadh Spun Pipe Limited, its agents and servants from removing or alienating or encumbering the properties and assets during the pendency of the said application. The said Act of 1984 was repealed by the new Act namely, Industrial Reconstruction Bank of India Act, 1995. The petitioner/appellant then filed an amendment petition for treating the application under Section 40 of the New Act of 1995. The said amendment petition was allowed by the learned single Judge.

3. The brief facts of the case is that the appellant sanctioned a sum of Rs. 1.22 crores to the respondent No. 1 in 1989. Respondents Nos. 2 and 3 are the promoters of respondent No. 1 while respondent No. 4 is the Managing Director- cum-Chief Executive of respondent No. 1. The said respondent executed a lease deed and a deed of hypothecation. Respondents Nos. 1 and 2 further created equitable mortgage in favour of the petitioner in respect of immovable properties situated within the district of Hazaribagh. The appellants case was that respondent No. 1 defaulted in repayment of the loan as a result of which the outstanding reached to Rs. 1,93,60,116/-. When various attempts were made from the side of the petitioner to get repayment of the loan and the amount was going higher and when all attempts failed then the appellant having no alternative filed the instant application under Section 40 of the said Act for sale of the mortgaged assets and for injunction restraining respondents from alienating those mortgaged and hypothecated assets.

4. Respondent No. 1 contested the application by filing an objection stating inter alia that application under Section 40 of the said Act was not maintainable before the High Court as the respondent Company already shifted its registered office to Patna before filing the petition and also on the ground that respondents are resident of Bihar and not residing within the territorial jurisdiction of the then Ranchi Bench of the Patna High Court. Respondent No. 1 further took an objection with regard to maintainability of the petition on the ground that the appellant already filed a suit being Original Suit No. 150 of 1994 in the original site of Calcutta High Court for realizing the amount of loan against the respondents.

5. Learned single Judge is of the view that if the application of the appellant is treated as an application before the Company Judge then the jurisdiction of the Court shall be decided under Companys Act as provided under Section 10 according to which High Court having jurisdiction in relation to the place at which registered office of the Company concerned is situated shall have the only jurisdiction to entertain the petition. Learned single Judge further held that if the application is treated as an application under the said Act of 1995 then in absence of any provisions for entertaining such application under the Patna High Court Rules, also application is not entertainable. For better appreciation paras 11 and 12 of the judgment of the learned single Judge is quoted herein below:

"Mr. P. K. Prasad then submitted that it is not a company petition in its truest sense as nowhere under the Reconstruction Act it has been clarified or specified, rather, from different Sections of this Act and even under Sectio