Hypothecatee Bank cannot go with empty hands.

ORDER: These civil revision petitions are directed against the order dated 6.6.2002 passed in I.A.Nos.665 of 2000 and 666 of 2000 in I.A.Mo.564 of 2000 in O.S.No.1053 of 2000 on the file of II Additional Subordinate Judge, Coimbatore.

2. The revision petitioners are Nedungadi Bank Limited (Now taken over by Punjab National Bank) and they have filed an application in I.A.No.666 of 2000 to implead them as party to the suit and also filed another application in I.A.No.665 of 2000 to erase the order of attachment before judgment, which has been passed in I.A.No.564 of 2000. Both the petitions came to be dismissed. Aggrieved by the same, they have filed these two civil revision petitions.

3. Heard the learned advocate for the petitioners and the respondents.

4. The revision petitioner would contend that respondents 2 and 3 have hypothecated their goods to the Bank and in respect of the same property, the first respondent, namely, M/s.Pondy Metal Rolling Mills Private Limited has filed a suit for recovery of the amount due to them and also taken out an application for attachment before judgment of properties of the respondents 2 and 3, which are already hypothecated to the petitioner-Bank. It is therefore, argued that as the goods have already been hypothecated they have a charge over it and that the attachment application taken out by the first respondent is subsequent to the same and therefore, the said attachment is not maintainable and even it it is maintainable, the same is subject to the hypothecation made in favour of the Bank.

5. On the contrary, learned advocate for the first respondent would contend that even on their own admission of the petitioner-Bank, the goods are said to have been hypothecated and they have not enforced their right and taken custody of the goods. Therefore, the right of the bank over the goods hypothecated is only limited right as long as the Bank has not taken any action pursuant to the hypothecation of the properties made to them, now, they cannot claim first charge of the hypothecated goods. It is the further contention of the learned advocate for the first respondent that even before the petitioner-Bank had taken action, they have filed the suit and also obtained an order of attachment before judgment and as such, their right to the goods which were said to have been hypothecated to them, will have the first charge over the hypothecated goods and therefore, their rights cannot subserve the right of the petitioner-Bank as claimed by them.

6. The fact that the first respondent has filed the suit and also got an order of attachment before judgment of the goods, which were said to have been hypothecated to the petitioner Bank, is not in dispute. As it has been rightly pointed out by the learned advocate for the first respondent, the petitioner-Bank is not in a position to place any material before this Court that it has taken any action pursuant to the goods said to have been hypothecated to them and before the order of attachment before judgment obtained by the first respondent. As such it is submitted that the order of attachment which has been passed in favour of the first respondent would prevail over the hypothecation, said to have been made in favour of the petitioner.

7. In support of the said contention, learned advocate for the first respondent would rely upon the case of Union of India v. CT.Shentilnathan and another, (1977)2 M.L.J. 499 (D.B.), wherein the Division Bench of our High Court has held:

“Though the learned counsel for the plaintiff referred to this decision, he was not able to satisfy us that under Ex.A-1, there was any transfer of such interest or title of the hypothecator in the goods in favour of the hypothecatee. Excepting for the bare assertion that the plaintiff as hypothecatee, could seek for permission of the goods in case of default of the hypothecator, no further right is thought of or claimed in the recitals in Ex.A-1. It is therefore clear that there was no transfer of inte

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