The Bank, as a custodian, was not liable for compensation, and the plaintiff's claim lacked evidence and privity of contract.

P. KALAIYARASAN, J.

This Original Side Appeal is directed against the Judgment and Decree of the learned single Judge, dated 09.05.2006 passed in C.S.No.150 of 1987 dismissing the suit.

2. The plaint averments are as follows:

(i) The plaintiff company was registered as a Private Limited Company under the Companies Act, 1956 on 01.07.1971. In pursuance of the objects, the plaintiff set up a hotel business under the name and style of Hotel Gokula at Poonamallee High Road, Madras. The said Hotel consisted of 73 rooms with various other amenities like conference hall, bar, restaurants and others. For the purpose of raising necessary funds for running the hotel, the plaintiff company approached the first defendant Bank for various loan facilities. The plaintiff was sanctioned (a) Term loan of Rs.20 lakhs; (b) Over draft - Rs.2 lakhs; and (c) Deferred Payment Guarantee-Rs.6.3 lakhs. The entire amount received by the plaintiff by way of loan was invested in the business of the company including the construction of the project. Under the agreement, the plaintiff has to repay the term loan in instalments commencing from 03.09.1974. The Company was not in a position to repay the loan as agreed due to reasons beyond its control and therefore, it requested the first defendant for capitalisation of the loan and the interest thereon. But the first defendant filed a suit against the plaintiff in C.S.No.151 of 1978 for recovery of Rs.47,59,950/- including the interest.

(ii) In the said suit, the first defendant filed an application for appointment of a Receiver. This Court appointed the second defendant as the Receiver for the management of the Hotel owned by the plaintiff, by order, dated 27.11.1978. The previous management of the plaintiff company had closed the Hotel on 30.11.1978. The second defendant as the Receiver appointed by the Court filed an application seeking direction to lease out the hotel property to the third defendant and this Court by its order, dated 04.12.1978 permitted the second defendant to lease out the hotel property to the third defendant. The lease was for a period of 5 years, i.e., from 01.12.1978 to 01.12.1983, subject to the orders of this Court. The monthly rent was fixed at Rs.20,000/- and the lessee was also directed to furnish a security deposit of Rs.2 lakhs. The lease commenced from 01.12.1978. The registered lease deed was entered into between the second and third defendant and the third defendant took possession and commenced the business from 01.12.1978. A separate amenities deed was also executed between second and third defendants. Under the said deed, the third defendant undertook to hand over the articles and equipments entrusted to him to the second defendant in good and usable condition, failing which the second defendant was entitled for compensation for the loss and damage to such amenities as may be determined by the Court, according to the prevailing market value.

(iii) In the meantime, this Court passed a decree on 18.07.1979 in C.S.No.151 of 1978 in favour of first defendant for a sum of Rs.47,59,841/-. It was also declared that the first defendant is entitled to equitable mortgage by the deposit of title deeds in respect of the hotel property belonging to the plaintiff and that the plaintiff was to pay into the Court on or before 18.01.1980, a sum of Rs.63,35,902.61/-. In default of the payment, the mortgaged property or sufficient part thereof was directed to be sold and the sale proceeds paid into the Court in satisfaction of the sum due to the first defendant. On disposal of the above suit, the third defendant was directed to vacate the premises to enable the second defendant to bring the property for sale.

(iv) This Court directed the third defendant to surrender the possession of the hotel property to the Receiver appointed by the Court, i.e., the second defendant herein. The third defendant preferred an appeal before the Division Bench in O.S.A.No.194 of 1981. The said appeal was