Judgment

MOHAN, J.:- Leave granted.

The appellant filed a suit bearing O.S. No. 7 of 1986 against respondents Nos. 1, 3 and 4 in the Court of Subordinate Judge, Rangareddy District at Saroor Nagar, Andhra Pradesh for recovery of Rupees 97,21,274.11 with interest thereon. The further prayer was, in default of payment a final decree might be passed directing the sale of mortgaged properties and for ancillary reliefs. The averments in the plaint are briefly as follows:

The first respondent is a limited company 3rd and 4th respondents are the Advisors and Directors respectively of the first respondent company. The first respondent deposited with the appellant the documents of title relating to its landed property at Industrial Development Area, Nacharam Tehsil, District Hyderabad (presently Rangareddy District) with an intention to create an equitable mortgage of immoveable property covered by those documents together with all structures and buildings thereon.

2. On 6-10-76, the third and fourth respondents executed separate guarantee in respect of the facilities granted to the first respondent guaranteeing repayment of amounts. On 20-1-84, one of the Directors declared that equitable mortgage by deposit of title deeds dated 6-10-75 would also form security for the letters of credit, fresh funded term loan, guarantee limited and other facilities allowed to the first respondent, by the appellant. The necessary forms in this regard were filed before the Registrar of Companies, Maharashtra. at Bombay for registering the charges.

3. In order to secure the amount under the various heads/credit facilities the first respondent deposited on 17-8-79 with the appellants Sundernagar Branch, Bombay, an agreement for sale in respect of the first floor of the building belonging to the first respondent. The first respondent requested that its account be transferred from Sundernagar Branch, Bombay to Hyderabad Main Branch of the appellant.

4. O.S. No. 507 of 1989 came to be filed by the appellant for recovery of a sum of Rs. 58,783.25 being expenses incurred from time to time in respect of these properties. Both the suits are pending adjudication.

5. Premium Automobiles Limited filed a winding up petition against the first respondent in Company Petition No. 645 of 1988 before the High Court of Bombay. By an order dated 23-6-90 the first respondent was ordered to be wound up. An Official Liquidator (respondent No. 2) was appointed as Liquidator of the Company. On 23-7-90 a meeting was held in the presence of the Official Liquidator. The appellant brought to the notice of the Official Liquidator the pendency of these two suits.

6. The appellant filed Company Application No. 229 of 1991 in the aforesaid Company Petition under S. 446 of the Companies Act (hereinafter referred to as the Act). The prayer in the application was for leave to prosecute the two Original Suits bearing Nos. 7 of 1986 and 507 of 1989 pending on the file of the Additional Subordinate Judge, Rangareddy District at Saroor Nagar. According to the appellant since the properties were situate in Rangareddy District it would be just and convenient to continue to prosecute the suits in Hyderabad.

7. On 26-3-92, the learned single Judge passed an order directing the two suits be transferred to the Bombay High Court. Aggrieved by that order Appeal No. 428 of 1992 was preferred by the appellant. That was dismissed summarily by the impugned order dated 15-12-1992. Hence, the special leave petition.

8. Mr. Anil B. Divan, learned counsel for the appellant submits that the courts below have not correctly appreciated S. 446 of the Act. The appellant is aggrieved in so far as the order of transfer of the suits from Hyderabad to Bombay was made. The finding that for the Official Liquidator to defend at a far distance in the Court of Additional Subordinate Judge, Rangareddy District at Saroor Nagar in Andhra Pradesh is going to be more expensive is not correct. Equally, the finding that the wasteful expen