At, Debt Recovery Appellate Tribunal At Chennai
By, THE HONORABLE JUSTICE: A. SUBBULAKSHMY. (CHAIRMAN)
For Petitioner: V. Sitharanjandas, Advocate And For Respondents: A.P.S. Kasthurirangon, Advocate.
1. The Appellants are defendants 2 and 4 in the Original Application (OA). The appellants filed IA 227/2001 directing the Tribunal to reject the OA as the same is against Rule 10 of the DRT (Procedure) Rules under the RDDB & FI Act, 1993. According to the appellants, they are the partners of D6 Firm and they retired from the partnership firm on 20.1.1997 and they are not liable for this claim as they retired from the partnership and they are only the erstwhile partners of the D6 Firm. The appellants further contend that the OA is filed as against the loan availed by D1 and D6 Firms and the two loans cannot be clubbed together in one OA and for the two loan transactions one OA filed is not maintainable and it is hit by Rule 10 of the Act. The appellants further contend that only if the two reliefs are clubbed together the jurisdiction of the DRT can be moved and the amount will exceed Rs. 10 lakhs and if a Suit is filed on each transaction for the loan of D1 and D6 separately, those Suits will not come under this RDDB & FI Act and the jurisdiction only lies before the Civil Court and so on these grounds the OA is not maintainable and thus the appellants seek for rejection of the OA as against them.
2. Counsel for the appellants submits that only to invoke the jurisdiction of the DRT the two loans are clubbed together and thus enhancing the claim to more than Rs. 10 lakhs the OA has been filed before the DRT. He further submitted that the claim due to D6 loan is only Rs. 6 lakhs and odd and D2 and D4 are the partners of D6 Finn alone and in such case the clubbing of two claims is not maintainable and D2 and D4 are not at all liable for the claim since they also retired from the partnership of the D6 Firm and the two loans are not consequential to each other. Counsel for the respondent Bank submitted that the D1 Firm availed the loan. D1 is the proprietary Concern and D1 availed the loan by mortgaging his property and the same D1 is also one of the partners of the D6 Firm and D6 Firm also availed loan from the Bank and for both these loans. D1's property has been mortgaged to the Bank and since the same property has been mortgaged to both loans, two separate Suits cannot be filed in respect of the same properly and sale of the property cannot be brought in respect of the same property in two Suits and so both the loans are clubbed and a single OA is filed before the DRT as they are consequential to each other. Rule 10 reads as follows.
"An applicant shall not seek relief or reliefs based on more than a single cause of action in one single application less the reliefs prayed for are consequential to one another."
3. Of course, Rule 10 says on single cause of action different reliefs cannot be sought, but Rule 10 also specifically states that if the reliefs prayed for are consequential to one another in one single application, the reliefs can be asked for. As pointed out by the Counsel for the respondent Bank, the same D1's property has been mortgaged for the loan availed by D6 in which D1 is also one of the partners of the Firm and as the mortgage has been created in respect of one and the same property for the two loans availed by D1 proprietary concern and D6 Firm in which D1 is also one of the partners, a single Suit is maintainable clubbing both the loans since the same property cannot be brought to sale in different Suits. Under such circumstances, Rule 10 of the DRT Act also does not prohibit it. Since the property of the D1 has been mortgaged to D6 in which D1 is also one of the partners and since both the loans are availed from the Bank, clubbing the two loans, a single OA filed by the Bank is maintainable. The Bank has also sought relief as against D2 and D4 and this is in respect of the loan availed by D6 alone and the Bank has not sought the entire claim as against D2, D4 and D6. So, it cannot be stated that the relief sought for by the plaintiff is also violative of the Rules.
4. Under such circumstances, I hold that the OA filed before the DRT is maintainable.
5. Counsel for the appellants submitted that D2 and D4 were partners in D6 Firm only for a limited period from 1.4.1995 to 20.1.1997 and they retired from the partnership and they are no longer liable for the Suit. The loan of D6 Firm was availed on 4.9.1995 Admittedly, D2 and D4 were partners of D6 Firm at the time of availing of the loan. The appellants claim to have retired from the partnership on 20.1.1997. Counsel for the respondent Bank submitted that after 20.1.1997 there was no transaction by D6 Firm and so even though D2 and D4 alleged to have been retired from the partnership, till they retired from the partnership they are liable for the claim and since no further loan transaction was availed for the existing loan transaction, D2 and D4 are liable for the claim against them. Even though the appellants claim to have retired from the partnership on 20.1.1997, till they retired from the partnership they are liable for the loan. That is the settled law. As it is, there is also no further loan transaction by D6 Firm after 20.1.1997. So, as it is the were partners. It is left open for the DRT-I, Chennai, to decide with regard to the respective contentions raised by both parties and pass appropriate orders.
6. Appeal dismissed.