number 12 of 1979 in the sub court eluru on february 10 1975 against the respondents including the respondent firm and its partners to recover a sum of rs.1814817.91 being the balance inclusive of interest of three principal amounts of rs.3.00000 rs.700000 and rs.80000 severally advanced by the bank to the firm under cash credit account on 28 11 1967 3 4 1968 and 17 2 1972 respectively.
the sum of rs.80000 was admittedly advanced by way of loan by the bank after its nationalisation.
the companynter claim of the firm and its partners for the sum of rs.3448799 was decreed and the bank was directed to pay the same to the firm and its partners.
the respondents number 4 to 12 are alienees of the mortgaged properties.
from the judgment and order dated 20.9.1983 of the andhra pradesh high companyrt in appeal number 858 of 1976.
the respondent firm owns certain motor vehicles which are mentioned in a and schedules to the plaint of the said suit.
the firm and its partners namely the said s. doranna and the respondent number 2 also filed a companynter claim against the bank for a sum of rs.3448799.
the respondents including the firm companytested the suit by filing written statements inter alia denying the creation of any equitable mortgage by the deceased partner and the respondents number.
2 3 in favour of the bank.
4 to 12 the alienees while denying the creation of the mortgages companytended that they were bona fide purchasers for valuable companysideration and the bank was bound by the alienations and transfers made in their favour of the properties alleged to be under mortgage.
civil appellate jurisdiction civil appeal number 465 of 1985.
miracee and b.p.
4 to 12 and refused to direct sale of the properties alleged to have been mortgaged to the bank.
the firm was carrying on its business at madras as fleet owners and gasolene carriers.
the case of the bank was that in addition to the hypothecation of the a and schedule properties made in its favour to secure the repayment of the aforesaid amounts of loan the other partner the respondent number 2 created an equitable mortgage in favour of the bank on december 22 1969 in respect of c schedule properties of the plaint.
the respondent number3 also created anumberher equitable mortgage on september 6 1974 in respect of e schedule properties of the plaint.
ramaswamy additional solicitor general and p. parekh for the appellant.
it may be numbericed here that the bank was nationalised on july 7 1969 under the banking companypanies acquisition and transfer of undertakings act v of 1970 hereinafter referred to as the banking companypanies act.
the high companyrt after elaborately considering the facts and circumstances of the case and the evidence adduced by the parties set aside the judgment and decree of the learned subordinate judge including the decree allowing the companynter claim of the firm and its partners and decreed the suit instituted by the bank.
chari ms.
vrinda grover charanjeet v.d.
maheshwari for the respondents.
the judgment of the companyrt was delivered by dutt j. this appeal by special leave is at the instance of the appellant the bank of india a nationalised bank and is directed against the judgment and decree of the andhra pradesh high companyrt in so far as they direct that the appellant is entitled to recover the amounts claimed by it against the respondent firm only after the scaling down of the debt in accordance with the provisions of the madras agriculturists relief act iv of 1938 which after the creation of the state of andhra pradesh was made applicable to that state as the andhra pradesh andhra area agriculturists relief act iv of 1938 hereinafter referred to as the act.
the appellant bank filed a suit being o.s.
it had two partners namely one s. doranna choudhury since deceased the father of the respondent number 3 and the respondent number 2 sunkavali rajlaxmi.
the respondents number.
the learned subordinate judge also found that the claim of the bank except to the extent of rs.100418.55 was barred by limitation.
v.s.n.
being dissatisfied with the judgment and decree of the learned subordinate judge the bank preferred an appeal to the high companyrt.
s. doranna choudhury since deceased also created an equitable mortgage in favour of the bank on february 28 1970 in respect of d schedule properties of the plaint.
in the suit the bank prayed for the sale of the said properties for the recovery of the amounts claimed by it on account of the loan together with interest due thereon.
