Bombay High Court
Central Bank Of India vs W.S.Deshmukh & Others on 19 August, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.87 OF 2001
The Central Bank of India,
Branch Akola, M.G. Road, Akola,
District Akola. ....... APPELLANT
...V E R S U S...
1] Shri W.S. Deshmukh,
Receiver, Akola - Alibhai Vishram
Oil Mill, Akola.
2]
M/s Ramanand Ramprasad,
duly Registered partnership firm,
Akola.
3] Govt. of Maharashtra,
through P.P., H.U. Deshmukh,
Akola.
4] M/s Manohar Waman Paraskar,
Akola.
5] Girdharilal Navarivallabh of Karanja.
6] Shri Arun Gopalrao Pohare of Akola.
7] Shri Vishnu Sadashio Pendharkar, Akola.
8] Shri Ramchandra Kasturchand Daga of
Karanja.
9] Ramvallabh Ramgopal Segria,
of Akola.
10] Shri Ambadas Sharma of Akola.
11] Dr. Mrs. Shukla of Akola.
12] Indian post & Telegraph Deptt.
through Divisional Engineer
Telegraph T.R.A. Unit, Akola.
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13] Sales Tax Officer, Akola.
14] Commissioner of Income Tax
Region, Nagpur, through
Income Tax Officer, C. Ward,
Akola.
15] Akola Municipal Council,
Akola.
16] M.S.E.B. through Supdt.
Engineer, Amravati.
17] Shri Shah Nagindas Vaghajibhai.
18] Kamalabai Goenka.
19] Smt. Jenabai Habibhai.
20] Bhutada Stores, Khamgaon,
through - Dayaram Madanlal
Bhutada.
21] Kanhaiyalal Bhailal & Co.
Deleted as per
Court order dt. through Kanhaiyalal Bhailal.
20/3/98
22] Ramjivanibai.
23] Shri Motilal Ramchandra Mundada.
24] Shri Basantkumar Ramjidas Agrawal.
25] Shri Govindmal Mulchand Ladna.
26] Hamendra Motor Stores, through
Deleted as per
Court order dt. Jambhubhai Thakurshah.
20/3/98
27] Shri Motilal Amolkchand.
28] Shri Ramchandra Kasturchand Daga.
29] Smt. Geetabai wd/o Govindas.
30] Kamlabai w/o Chiranjilal,
Kantabai w/o Dwarkadas.
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31] Shri Motilal Murli Dhar.
32] Shri Nandkishor Mulchand.
33] Shri Ab. Waheb Mohd. Gulab.
34] Shri Khaja Abdul Kha through
L.Rs.
35] Shri Khaja Aminoor Rehman.
36] Shri Chaudhari Renu.
37] Shri Chaudhari Lalu.
38] Shri Gulam Mustafa.
39] Shri Md. Yakub Md. Hattam Patel.
40] Shri Md. Amir s/o Sk. Ahmad.
41] M/s Ramanand Ramprasad Hundi
and Khata Accountant. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri M.D. Samel, Advocate for Appellant.
Shri R.L. Khapre, Advocate for Respondent No.2.
Shri H.S. Chitaley, Advocate h/f for Shri S.V. Manohar, Senior
Counsel for Respondent No.9.
Shri Anand Parchure, Advocate a/w Shri Bhushan Mohota,
Advocate for Respondent No.14.
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CORAM: R.K. DESHPANDE, J.
th AUGUST, 2016.
DATE: 19
ORAL JUDGMENT
1] Insolvency Case No.3 of 1971 decided on 31.01.1984 by the
trial Court, the appellant is held entitled to recover an amount of
Rs.5,39,509.92 as a secured creditor as against its total claim of
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Rs.22,64,402.95 outstanding on 28.01.1980 against the insolvent.
The Misc. Civil Appeal No.21 of 1984 preferred under Section 75 of the
Insolvency Act was dismissed on 08.12.1995. Hence, this appeal under
Section 75(1) of the Insolvency Act. This appeal is to be treated as in the
nature of second appeal as contemplated under Section 100 of the Code
of Civil Procedure. Hence, it was admitted by this Court on 04.04.2001
framing the substantial questions of law as under:
igWhether, in the facts and circumstances of the case, the
appellant Bank could have been held disentitled to recover its
secured dues because of any act of negligence in not properly
securing the goods which were allegedly lost because of the
theft at the factory premises and at the shipyard ?
(2) Whether the respondents/creditors were justified, in the
facts and circumstances, to point out that the appellant Bank
was disentitled to recover its debt through the assets in the
hands of the Receiver on priority as a secured creditor and
that the Bank had lost that legal privilege because of its act of
neglect in preserving the assets in their hands ?
(3) In the event of the conduct of the appellant/Bank being
blameworthy so as to disentitle its claim as a secured creditor,
whether the judgment and decree passed against the Bank is
correct, proper and legal even in the light of the provisions of
the Provincial Insolvency Act ?
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2] It is not disputed that the appellant-Bank was a secured
creditor and as on 28.01.1980 the total outstanding dues against the
insolvent were Rs.22,64,402.95. The property mortgaged with the Bank
by way of security was sold by the Bank and some amount was realized.
This insolvency case does not pertain to the said amount. The dispute
pertains only to the amount, which was secured by way of pledging the
goods in respect of raw material, work in progress and the finished
goods. It is also not in dispute that as per the report lodged by the Bank
with the Police Station, the moveable property worth Rs.4,49,200/- was
found missing from the godown of the insolvent. Similarly, the goods
worth Rs.10,16,000/- hypothecated with the Bank were also found
missing from the shipyard. Thus, the total loss of goods worth
Rs.14,65,200/- is established.
3] Both the Courts below have recorded the finding that the
goods lost were pledged with the appellant-Bank, and the same were not
removable without the permission of the Bank. The keys of the godown
were with the Bank. The Bank having found negligent in maintaining the
goods, the principle laid down under Section 151 of the Contract Act,
has been applied and it is held that the Bank has failed to take proper
care like a prudent man in respect of the goods pledged with it.
The Courts below have deducted the costs of goods proved to have been
lost along with the interest, which was charged by the Bank on it from
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the date of lodging of the report, and there is no dispute on it.
4] According to Shri Samel, the learned counsel appearing for
the appellant, immediately after the inspection, the report was lodged in
the Police Station and it cannot be said that the Bank was negligent so as
to make it disentitle to get the amount from the receiver out of the sale
of the other properties of the insolvent. It is also urged by him that the
Bank was not in actual possession of the goods, and it is, therefore, not
responsible for its lost. The Courts below have taken into consideration
all these aspects and it is held that the goods were in the custody of the
Bank and without the permission of the Bank the goods were not
removable, the Bank has therefore, failed to take proper care and
caution, as a result of which the goods have lost. The principle
incorporated under Section 151 of the Contract Act, has been applied on
the question of fact. The findings recorded by the Courts below are based
upon the evidence available on record. At any rate, it is a possible view
of the matter.
5] In view of above, none of the questions of law framed by
this Court arises for determination. The second appeal is dismissed.
JUDGE
NSN
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C E R T I F I C A T E
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