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Judgment
Learned counsel for the appellants contends that a preliminary issue was raised by the appellants before the Tribunal below regarding substitution of Kotak Mahindra Bank being valid or not relying upon a judgment dated 25.05.2009 passed by the Hon’ble High Court of Lucknow Bench in writ petition no. 11080(MB)/2008 filed by some other party, wherein the Hon’ble High Court has set aside the assignment deed, on the basis of which Kotak Mahindra Bank got itself substituted and the appellants also intended to file some application in this regard, but the Tribunal below did not consider the request of the appellant and declined to decide any issue as preliminary issue and vide impugned order dated 21.09.2016 fixed the case for hearing on 24.10.2016. Hence, the present appeal has been filed by the appellants praying that the impugned order dated 21.09.2016 may be set aside and the issue regarding substitution of Kotak Mahindra Bank be decided as preliminary issue.
Learned counsel for the respondent-Bank contends that the order of the Hon’ble High Court, Lucknow Bench dated 25.05.2009 referred to as above was stayed by the Hon’ble Apex Court in SLP No. 17612/2009 vide order dated 07.08.2009, copy of which has been appended as annexure no. 1 to the reply of respondent-Bank. It is further contended that the SLP is still pending before the Hon’ble Apex Court. It is also contended that the Tribunal below has left open for the appellants to argue/raise all aspects/issues at the time of final arguments and has only held that they have no right to press upon to consider that issue as preliminary objection.
Considering the submissions of the learned counsels for the parties and the fact that the Tribunal below has already granted liberty to the appellants for raising all their issues/objections at the time of final arguments, I am of the view that no prejudice has been caused to the appellants. As such there is no infirmity or illegality in the impugned order. Hence, the appeal is liable to be dismissed.
Accordingly, the appeal is dismissed with no order as to costs.