1. Counter not filed by R2 to R4. Respondents 2 to 4 were called absent and set ex parte. Perused this instant application filed by the third party seeking for its impleadment in the main case and the counter filed herein by the first respondent/Bank.
2. According to the petitioner/third party, the third and fourth respondents, representing the second respondent herein, had approached the petitioner in the month of September, 1998 slating that, they were the successful bidders in the Court-auction held in respect of a vessel viz. M.V Eleni and that if the balance of sale consideration of Rs. 95,60,000 was not deposited within the stipulated period, the entire amount already paid would be forfeited.
3. In short, the case of the petitioner herein is that he had paid thesaid amount of balance sale consideration to the Advocate Commissioner appointed by the Hon'ble High Court, as 2 to 4 respondents herein were not able to pay the said amount. It is also the case of the petitioners herein that, he had also paid Rs. 7,20,000 to Sai Shipping Company and for the various expenditures relating to the vessel, only at the behest of the third and fourth respondents herein.
4. It is inter alia further contended by the petitioner/proposed defendant herein that, R3 and R4 after obtaining confirmation of sale and had acquired the title to the abovesaid vessel for Rs. 1,30,00,000/- in favour of the petitioner herein. It is also the apprehension of the petitioner that the respondents are now colluding themselves to defeat his interest in respect of the aforesaid vessel, so purchased. Hence, this petition by the third party seeking impleadment.
5. The respondents 2 to 4 who are said to be the bidders in the said Court-auction, had remained ex parte. The only contesting first respondent who is the applicant Bank in the main case has contended by way of filing a counter that, the sale of the vessel was not confirmed, besides there were protracted proceedings and the Division Bench of the Hon'ble High Court at Madras has remanded the matter involving the said vessel to the trial Judge for holding a fresh auction at an enhanced price. It is also the grievance of the first respondent Bank, the Advocate Commissioner, who was at the helm of affairs of auction had withdrawn the EMD of Rs. 35,60,000, only at the instance of the second respondent herein.
6. According to the sole contesting first respondent, the alleged sale of the vessel by the second respondent in favour of the third party is for a ridiculously low price of Rs. 1,30,00,000/- whereas the market value of the vessel is about Rs. 7 crores. Before parting with his counter at para 14 the first respondent herein has ventilated his willingness for the impleadment of the proposed defendant in the main case, provided the third party applicant be directed to settle the outstanding dues to the Bank by way of remittance of a sum of Rs. 1,55,00,000/- towards the arrears of interest, as a condition-precedent for allowing of this application.
7. It is also the case of the first respondent herein that it is not the Bank which is colluding with its borrowers namely R2 to R4, but the proposed defendant is colluding with his vendor viz. the R2 to R4 herein.
8. Now, the point for consideration is that, whether, the petitioner/third party is to be impleaded in case or not?
9. It is not in dispute between the parties to the lis that the proposed defendant, the purchaser of the vessel from the R2 to R4, but the only contention of the respondent Bank is that the said alienation of the vessel is very much in contradiction to the provisions of law, under which the petitioner herein is now claiming the right of the vessel.
10. Learned Counsel for the sole contesting first respondent contended before me that the alleged sale of the vessel in favour of the proposed defendants is only a sham and nominal one and the bona fides of the petitioners purchasing the vessel in question, from the borrowers, can be agitated only at the time of trial.
11. Bearing it in mind that the sole contesting first respondent who is the applicant in the main case seeking recovery of dues from his alleged borrowers namely R2 to R4, had taken a specific stand at para 14 of the counter that the Bank is also entitled to recover the dues in respect of the loan transactions even from the proposed defendant viz. the petitioner herein. I am of the view that, the petitioner third party herein, is also a proper and necessary party to be impleaded in the main case for its effective adjudication and also to avert multiplicity of proceedings between the parties. Imposing condition on the petitioner/third party, as asked for by the respondent-Bank, before impleading, will be like “putting the cart before the horse”.
12. As far as the question with regard to the alienation of the vessel, in favour of the petitioner, is concerned and whether it was a bona fide one or not, cannot be embarked upon at this pre-mature juncture, where there is no evidence on either side on record. Therefore, I leave it open to the parties on either side to prove or disprove their respective contentions at the time of trial, after letting in their respective oral or documentary evidence.
13. In consequence thereof, this application is allowed. For carrying out amendment and for filing amended copy of the application by 29.3.2000 and reply statements of other contesting defendants by then.
Application allowed.