MAHARASHTRA STATE FINANCIAL CORPORATION v. JAYCEE DRUGS AND PHARMACEUTICALS PVT. LTD. AND ORS

Citation: [1991] 1 S.C.R. 480

Court: Supreme Court of India

Bench: S. RANGANATHAN, N.D. OJHA, S.C. AGRAWAL

Case summary

company's failure to do so, it took over the Industrial Concern under section 29 of the Act and initiated steps to realise its dues by putting tile property to sale....

Judgment text

MAHARASHTRA STATE FINANCIAL CORPORATION v. -14. JAYCEE DRUGS AND PHARMACEUTICALS PVT. LTD. AND ORS. FEBRUARY 19, l991 [S. RANGANATHAN, S. C. AGRAWALANDN. D. OJHA,JJ. ] State Financial Corporation Act, 1951: Sections 31 and 32- . :>. Scope of-Presidency town-Jurisdiction to entertain-Whether a petition under sections 31 and 32 is to be made before a City Civil Court or the Hi1:h Court. Liability ofa surety-Enforcement of-Whether in such a peti- \. J_, tion a money decree for repayment ofloan can be passed against a party who stood surety personally without any security. Held if the claim is upto Rs. 50,000 the application would lie to City Civil Court and ifit is more than to the High Court-Amending Act 43 of 1985. By majority y held that after the amendment introduced by Act 43 of 1985 such an application shall lie for enforcing the liability ofa surety who ha~ given only personal guarantee. Respondent No. 1 a Private Limited Company, was sanctioned a loan of Rs.

30 iakhs by the Appellant-Corporation for the setting up ofa factory. To secure this loan a mortgage deed of certain properties was executed by the Company and Respondents 2 to 4 as its directors bad >--executed a personal Surety Bond without any security for its repayment. After obtaining a part of the sanctioned loan, which was to be given in phases, the Company became - City Civil Court and the High Court bad no jurisdiction to entertain it, (b) that no money decree can be passed under sections 31and32 of the Act, and (c) that the provision in the Act relating to enforcement of the MAHARASHTRA FINANCIAL CORPN. v. JAYCEE DRUGS 481 liability of surety were ultra vires of Article 14 of the Constitution. The >-- learned single judge relying on an earlier decision of the Bombay High Court reported in 1987 Mah. L. J.

243 held that the High Court had jurisdiction to entertain the petition but on merits took the view that no money decree could be passed under sections 31 and 32 even against the sureties and since in the instant case the sureties had not given any security except their personal guarantee, the same could be enforced only in the ordinary course and not under the special machinery pro- -i_ vided under the Act. In view of his f'mdings on the f'lrst two pleas no arguments were entertained on the last plea and accordingly the petition was dismissed. The Division Bench while dismissing the appeal not only upheld the f'mding of the single Judge on merits but also overruled '-~/ the decision reported in 1987 Mah. L. J. 243 and held that the High Court had no jurisdiction to entertain a petition under sections 31 and 32 of the Act. The Corporation came up in appeal before this court by ¥ special leave against this decision ofthe High Court of Bombay.

The impugned judgment was assailed by the Appellant Corporation both on merits and on the plea of jurisdiction. The respondents in o reply asserted that the fmdings of the High Court on both pleas were unassailable. · Allowing the appeal, by a majority decision, HELD: A. By the Full Court (i) The extent of the liability stated in the application as contemplated by sub0 section (2) of section 31 of the Act would represent the value of the claim of the Corporation and if such value is upto Rupees , Fifty Thousand, the application would lie in the City City Court and ifit ~s more than that amount it would lie in the High Court. This interpretation would give meaning and relevance to the words "having jurisdiction" used in sub-section (11) of section 32.

A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words "and in the absence ofsuch court, by the High Court" occurring in the said sub-section (11) inasmuch as in 2 Presidency-town, in terms of territorial jurisdiction, the jurisdiction of ~ the City Civil Court and ofthe High Court is co-terminus. [495D-F] (ii) In the instant case the extent of liability of the surety being more than Rupees fifty thousanci, the. ~tion could only have been filed and was rightly fded in the Hilb. Court and the finding in the judgment under appeal to the contrary for holding that the High Court -1( had no jurisdiction to entertain the application cannot be sustained. (497A] B. Per N. D. Ojha, J. for himselfand Ranganathan, J. (iii) There can be no doubt that the term, "any surety" used in .

B clause (aa) in sub-section (1) of section 31 of the Act, will include not only a surety who has given some security but also one who has given only a personal guarantee. In our opinion, in a case where the relief . ~ claimed in the application under section 31(1) of the Act is for enforcing the liability of a surety who has given only a personal guarantee, subsection 4(A) of section 32 where no cause is shown and clause (da) of .. ,_;_, sub-section (7) where cause is shown, contemplate cutting across and dispensing with the provisions of the Code of Civil Procedure from the stage of filing a suit to the stage ofobtaining a decree against the surety, the passing of an order which can straightaway be executed as if it were ¥ a decree against the surety which may be passed in the event of suit being filed.

[498F, 499E] (iv) In the absence of any provision such as sub-section (8) of section 32 of the Act applying the manner provided in the Code for the execution of a decree against a surety only "as far as practicable" the entire provision contained in this behalf in the Code shall be applicable. This would be so in view of the use of the expression "any other law for >the time being applicable to an industrial concern" used in section 46B of the Act. That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted. [500H-501A] ,• (v) Even in the absence of section 46B of the Act the provisions of the Code would have been attracted in the matter -of enforcing the liability of a surety in view of the decision of this Court in National ' , Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. , [1953] SCR . _.. ,,.

-- 1028 inasmuch as the District Judge while exercising jurisdiction under sections 31 and 32 of the Act is not a persona designata but a court of ordinary civil jurisdiction. [501B0 D] (PerS. C. Agrawal, J. Dissenting. ) It· cannot be comprehended that while making provision which ).... would enable passing of an order in the nature of a money decree against a surety oil an application under section 31 of the Act, Parliament would have refrained from making a corresponding provision prescribing the procedure for carrying into effect such an order. It MAHARASHTRA FINANCIAL CORPN. v. JAYCEE DRUGS 483 )-.

appears to be more in consonance with the scheme of the Act and the object underlying sections 31 and 32 that by introducing the amendments in sections 31 and 32 of the Act the Parliament intended to place the surety on the same footing as the principal debtor so as to enable the Financial Corporation to obtain relief against the properties of the principal debtor as well as the surety. [515E~G] If considered in this perspective, the expression "enforcing the liability of any surety" in clause (aa) of section 31(1) would mean enforcing the liability of a surety in the same maimer as the liability of principal debtor is enforced, by attachment and sale of property keeping in view that the proceedings under sections 3i and 32 of the Act are akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree.

The relief of a money decree sought against the sureties-respondents 2 to 4 was not maintainable and the said relief could not be granted to the appellant in proceedings under section 31 of the Act. As a result, the petition (ded by the appellant must be dismissed and for the same reason this appeal must fail. [515G-516A, 516D-E] Munnalal Gupta v. Uttar Pradesh Financial CorporatiOn & Anr. , A. I. R. 1975 Allahabad 416; Thressiamma Varghese v. K. S. F. Corpora- ·, tion, A. I. R. 1986 Kerala 222; Maharashtra State Financial Corpora- ~ . tion v. Hindtex Engineers Pvt. Ltd. , [1987] M. L. J. 243; Kayastha Training & Banking Corporation Ltd. v. Sat Narain Singh, [1921] I. L. R. 43 All. 433; M. K. Ranganathan & Anr. v. Government ofMadras & Ors. , [1955] 2 S. C. R. 374; The Central Talkies Ltd. , Kanpur v. Dwarka Prasad, [1961] 3 S. C. R. 495, referred to. Magan/al v. M/s. Jaiswal Industries, Neemach & Ors. , [1989] 4 '1'~ S. C. C. 344; Mis. Everest Industrial Corporation & Ors. v.

Gujarat ""'f'" State Financial Corporation, [1987] 3 S. C. C. 597; Parkash PlayingCards Manufacturing Co. v. Delhi Financial Corporation, A. I. R. 1980 Delhi 48; Gujarat State Financial Corporation v. Natson Manufacturing Co. Pvt. Ltd. & Ors. , [1979] 1 S. C. C. 193, distinguished. West Bengal Financial Corporation v. Gluco Series Pvt. !. ,td. , A. I. R. 1973 Cal. 268, approved. CIVIL APPELLATE JURISDICTION:. Civil Appeal No. 782 of 199L From the Judgment and Order dated 10. 7. 1990 of the Bombay ') High Court in Appeal No. 423of1987. Ashok H. Desai, Vinay Tulzapurkar, Raghu Kothare and Rajiv Dutta for the Appeallant. -Soli J. Sorabjee, D. R. Poddar, Ms. Pumima, Atul Sharma, A. V. Palli, E. C. Agrawala and V. B. Joshi for the Respondents. The Judgments of the Court was delivered by OJHA, J. Special leave granted. •-... J_,' This appeal by special leave has been preferred against the judgment dated 10th July, 1990 of the Bombay High Court in Appeal No. 423 of 1987. Respondent No.

1 is a private limited company whereas Respondents 2 to 4 are its Directors. Respondent No. 1, for setting up a factory, sought financial assistance from the appellant and the appellant sanctioned a loan of Rupees thirty lakhs. In order to secure the loan Respondent No. 1 executed a deed of mortgage of certain properties on 29th June, 1979 and Respondents 2 to 4 on the same date by executing a deed of guarantee stood surety for repayment of the said loan. It was a case of personal guarantee only as no property was given in security. For the sake of brevity the appellant, Respondent No. 1and Respondents 2 to 4 shall hereinafter be referred to as the Corporation, the Company and the sureties respectively.

1be amount of loan was to be advanced in phases and after the Corporation had advanced a part of the total sanctioned loan, the Company did not want to avail of the balance of the amount as it seems to have lost interest in setting up the factory for reasons with which we are not concerned. The Corporation consequently called upon the Company to repay the amount already advanced together with interest aad on its failure fo do so took p~ssession under Section 29 of the State Financial Corporations Act, 1951 (for short the Act) over the industrial concern, term defined under Section 2(c) of the Act and took steps to realise its outstanding dues by transfer of property in the manner provided therein. However, notwithstanding advertisement for sale thereofhaving been made on several occasions the Corporation could not get an offer of more than about Rupees five lakhs.

Having failed to recover the amount due to it in the manner stated above, the Corporation proceeded to recover the same from the sureties whose liability was co-extensive and for this purpose it filed a petition in the High Court under Sections 31and32 of the Act arraying ,, . > the Company as Respondent No. 1 and the sureties as Resondents 2 to >- 4, with the prayer that "the respondents be jointly and severally ordered and decreed to pay the petitioners the sum of Rs. 15,87,391. 20 as per particulars hereto annexed and marked Ex. H. with further interest at the rates of 14-1/2% per annum till payment and may further "be ordered to pay to the petitioners costs of the petition". Thus, according to the relief claimed in the petition the liability of the respondents with regard to the amount payable to the Corpora,tion on ~ the date of making of the petition was for a sum which was more than R.

upees fifty thousand which, as will be presently shown, represents maximum amount over which the Bombay City Civil Court has ~ pecuniary jurisdiction. ... The respondents contested the petition and raised three pleas in defence: (1) A petition under Sections 31 and 32 of the Act could be ..... ,,, filed only in the Bombay City Civil Court and the High Court had no jurisdiction to entertain it, (2) the relief claimed in the petition could not be grai:ited under Sections 31 and 32 of the Act inasmuch as these sections did not contemplate passing of a money decree not only against the principal debtor but also against the sureties; and (3) the provisions in the Act relating to enforcement of the liability of a surety were ultra vires Article 14 of the Constitution. -4( The learned Single Judge of the High Court before whom the petition came up for hearing did not, in view of his finding on the first two pleas, entertain any argument on the last plea nor has the said plea ....

been raised before us and as such the same does not need to be gone into. As regards the second plea it was conceded before the learned Single Judge on behalf of the Corporation by its learned counsel that no such money decree could be passed against the Company as was claimed in the petition. It was, however, asserted that such a decree ~ could be passed as against the sureties. In this view of the matter the petition was treated and decided as being confined against the sureties only. In regard to the plea of jurisdiction the learned Single Judge took the view that since an appeal was pending before a Division Bench of the High Court against the judgment of a Single Judge in Misc. Petition No. 357 of 1985, Maharashtra State Financial Corporation v. Hindtex Engineers Pvt. Ltd.

, decided on 3rd December, 1986 (since --/_ reported in 1987 Maharashtra Law Journal 243), in which it had been held that such a petition was maintainable in the High Court, he would proceed to decide the petition on merits on the assumption that he had jurisdiction to entertain it. On merits. he took the view that no money decree could be passed in a petition under Sections 31 and 32 of the Act even against the sureties and since in the instant case sureties had _.... _ admittedly not given any security except their personal guarantee the said surety could be enforced only in the ordinary course and not under the special machinery provided under the Act. The petition was accordingly dismissed. Aggrieved by the judgment of the learned Single Judge the Corporation preferred an appeal before a Division Bench which has ~ been dismissed by the judgment under appeal.

The Division Bench not only upheld fhe finding of the Single Judge on merits but also overruled the decision reported in 1987 Maharashtra Law Journal 243 and ' held that the High Court had no jurisdiction to entertain a petition '-J. under Sections 31 and 32 of the Act. ...... Shri Ashok Desai, Senior Advocate appearing for the Appellant- Corporation has assailed the findings of the High Court in the judg- ¥ ment under appeal both on merits and on the plea about jurisdiction. Shri Soli J. Sorabjee, Senior Advocate appearing for the respondents has in reply asserted that the findings of the High Court on both the pleas were unassailable. An application for intervention being I. A. No. 3 of 1990 has been made on behalf of Nav Bharat Udyog, a parternship firm having its office at Mehta Building, 2nd Floor, 47, Nagindas Marg, Bombay, confined to the plea with regard to jurisdic- ,.. _.

tion and it has been urged by learned counsel for the intervenor also, in line with the submission made by learned counsel for the respondents, that it is only the Bombay City Civil Court and not the High Court which has jurisdiction to entertain a petition under sections 31 and 32 of the Act. For the sake of facility in considering the respective submissions made by learned counsel for the parties we find it useful to refer to the ~ statutory provisions relevant in this behalf. Section 2 of the Bombay City Civil Court Act, 1948 contains definitions and inter alia provides: "2. In this Act unless there is anything repugnant in the subject or context,- (1) "City Court" means the Court established under Section 3; )-. - (2) "High Court" means the High Court of Judicature at Bombay" ,;. - Section 3 in its turn provides: "3. The State Government may by notification in the Official Gazette, establish for the Greater Bomaby a court, to be called the Bombay City Civil Court.

Notwithstanding anything contained in any law' such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding fifty thousand ~ rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognizable- '~ (a) by the High Court as a Court of Admiralty or Vice-Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or y (b) by the High Court for the relief of insolvent debtors, or (c) by the High Court under any special law other than the Letters Patent; or (d) by the Small Cause Court: -.. -( Provided that the State Government may, from time to time, after consultation with the High Court, by a like .. notification extend the jurisdiction of the City Court to any suits or proceedings which are cognizable by the High Court as a court having testamentary or intestate jurisdiction or for the relief of insolvent debtor.

" ~ The other Section which is relevant is Section 12 which reads: "12. Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to·try suits and proceedings cognizable by the City Court; Provided that the High Court m'ay, for any special reason, and at any stage remove for trial by itself any suit or proceeding from the City Court. " As regards Sections 31 and 32 of the State Financial Corporations Act, 1951, since the submissions made by learned counselfor the parties referred to most of the provisions contained therein these two ... f... Sections may be quoted in their ~ntirety. They read: . "31.

(1) Where an industrial concern, in breach of any agreement makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement ~ with the Financial Corporation or where the Financial - Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 and the industrial concern fails to make such repayment, ~then, without prejudice to the provisions of section 29 of .. ,..

this Act and of section 69 of the Transfer of Property Act, 1882 any officer of the Financial Corporation, generally or · specifically authorised by the Board in this behalf, may y apply to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely:- (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial ~ _ Corporation as securityfor the loan or advance; or ,,... -- (aa) for enforcing the liability of any surety; or (b) for transferring the management of the industrial concern to the Financial Corporation; or (c) for an ad interim injunction restraining the ' industrial concern from transferring or removing its·~ machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended.

(2) An application under sub-section (1) shall state the nature and extent of the liability of the industrial concern to the Financial Corporation, the ground on which it is >-made and such other particulars as may be prescribed. 32. (1) When the application is for the reliefs mentioned in clauses (a) and (c) of sub-section (1) of section 31, the district judge shall pass an ad interim order attaching the security, or so much of the property of the industrial con- · cern as would on being sold realise in his estimate an amount equivalent in value to the outstanding liability of the industrial concern to the Financial Corporation, togethe; with the costs of the proceedings taken under section 31, with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment.

(lA) When the application is for the relief mentioned in clause (aa) of sub-section (1) of section 31, the district judge shall issue a notice calling upon the surety to show cause on a date to be spcified in the notice why his liability should not be enforced. (2) When the application is for the relief mentioned in clause (b) of sub-section (1) of section 31, the district judge shall grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment and issue a notice calling upon the industrial concern to show cause, on a date to be specified in the notice, why the management of the. industrial concern should not be transferred to the Financial Corporation. (3) Before passing any order under sub-section (1) or sub-section (2) or issuing a notice under sub-section (lA), the district judge may, if he thinks fit, examine the officer making the application.

(4) At the same time as he passes an order under sub-section (1), the district judge shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order, the application ' and the evidence, if any, recorded by him calling upon it or him to show cause on a date to be specified in th~ notice why the ad interim order of attachment should not be made absolute or the injunction confirmed. (4A) If no cause is shown on or before the date specified in the notice under sub-section (lA), the district judge shall forthwith order the enforcement of the liability of the surety. (5) If no cause is shown on or before the date .. _ specified in the notice under sub-sections (2) and (4), the district judge shall forthwith make the ad interim order absolute and direct the sale of the attached property or transfer the management of the industrial concern to the Financial Corporation or confirm the injunction.

(6) If cause is shown, the district judge shall proceed to inves~igate the claim of the Financial Corporation in ~ accordance with the provisions contained in the Code of Civil Procedure, 1908, in so far as such provisions may be .. applied thereto. 'd· (7) After making an investigation under sub-section --- (6), the district judge may- (a) confirm the order of attachment and direct the 'Y' sale of the attached property; (b) vary the order of attachment so as to release a portion of the property from attachment and direct the sale of the remainder of the attached property; (c) release the property from attachment; ~-- (d) confirm or dissolve the injunction; (da) direct the enforcement of the liability of the ...

surety or reject the claim made in this behalf, or ·(e) transfer the management of the industrial concern to the Financial Corporation or reject the claim made -~ in this behalf; Provided that when making an order under clause (c) or making an order rejecting the claim to enforce the liability of the surety under clause (da) or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under -~ clause (e), the district judge may make such further orders as he thinks necessary to protect the interests of the Financial Corporation and may apportion the costs of the proceedings in such manner as he thinks fit: Provided further that unless the Financial Corpora- ...... ,,-.

tion intimates to the district judge that it will not appeal against any order releasing any propei:ty from attachment or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation, such order shall not be given effect to, until the expiry of the period fixed under subsection (9) within which an appeal may be preferred or, if an appeal is preferred, unless the High Court otherwise directs until the appeal is disposed of. (8) An order of attachment or sale of property under ·~ this section shaU be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeholder.

(SA) An order under this section transferring the management of an industrial concern to the Financial Corporation shall be carried into effect, as far as may be practicable, in the manner provided in the Code of Civil Procedure, 1908, for the possession of immovable property or the delivery of immovable property in execution of a decree, as if the Financial Corporation were the decreeholder. (9) Any party aggrieved by an order under subsection (4A), sub-section (5) or sub-section (7) may, within thirty days from.. 'the date of the order, appeal to the High Court, and upon such appeal the High Court may, after ~- hearing the parties, pass such orders thereon as it thinks proper.

(10) Where proceedings for liquidation in respect of an industrial concern have commenced before an application is made under sub-section (1) of section 31, nothing in this section shall be construed as giving to the Financial Corporation any preference over the other creditors of the 4 industrial concern not conferred on it by any other law.. {11) The functions of a district judge under this section shall be exercisable- (a) in a presidency town, where there is a City Civil -~ Court having jurisdiction, by a judge of that court and in the absence of such court, by the High Court; and (b) elsewhere, also by an additional district judge or by any judge of the principal court of civil jurisdiction. (12) For the removal of doubts it is hereby declared that any court competent to grant an ad interim injunction ~ under this section shall also have the power to appoint a Receiver and to exercise all the court powers incidental thereto.

" At this place it may be pointed out that with regard to the enforcement of the liability of a surety it was held by a Full Bench of the Allahabad High Court in Munnalal Gupta v. Uttar Pradesh Financial Corporation and Another, A. LR. 1975 Allahabad 416 that from the scheme of the Act it is clear that the speedy remedy contained in Section 31 is available not against the surety but against the borrower only. In arriving at this conclusion reference was made inter alia to the reliefs (a), (b) and (c) contained in sub-section (1) of Section 31 and to sub-section (4) of Section 32 of the Act as it then stood.

It was pointed out that this sub-section (4) contemplated a notice to the borrower industrial concern after an interim order had been passed to show cause why the ad interim injunction should not be made absolute but did not contemplate a notice to the surety and that it would be unthinkable that the Legislature intended that the property of the surety may be attached and put to sale without even a notice to him. It appears that in order to meet the difficulty in enforcing the liability of a surety as pointed out in the case of Munnalal Gupta (supra) Parliament found it necessary to make specific provisions in this behalf and passed the State Financial Corporations (Amendment) Act, 1985 (hereinafter referred to as _Act 43 of 198_5). Among other amendments made by Act 43 of 1985 were the following: (i) In sub-section (1) of Section 31 clause (aa) was inserted.

(ii) In Section 32 a new sub-section (lA) and in sub-section (3) thereof the words "or issuing a notice under sub-section (lA)" were inserted. MAHARAS. HTRA FINANCIAL CORPN. v. JAYCEE DRUGS [OJHA. J. ] 493 (iii) Sub-section (4) of Section 32 was substituted with an inclusion of sub-section (4A). (iv) The word "or" occurring at the end of clause (d) of sub-section (7) was omitted and a new clause (da) was inserted. (v) In the firs.

t proviso after sub-section (7) the words "or making an order rejecting the claim to enforce the liability of the 4 surety under clause (da) or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause (e)" and in the second proviso the words "or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation" were inserted and in sub-section (9) the words "under sub-section (4A), sub-section (5)" were substituted for "under sub-section (5)". By the same Act 43 of 1985 a new Section 32G was inserted which reads: "32G.

Where any amount is due to the Financial Corporation in respect of any accommodation granted by it to any industrial concern, the Financial Corporation or any person authorised by it in writing in this behalf, may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the amount due to it, and if the State Government or such authority, as that Government may specify in this behalf, is satisfied, after following such procedure as may be prescribed, that any amount is· so due, it may issue a certificate for that amount to the Collector, and the Collector shall proceed to recover that amount in the same manner as an ,,.. arrear of land revenue. '' Having extracted the relevant statutory provisions we now take up the question of jurisdiction. Sub-section (1) of Section 31 of the Act contemplates making of the petition thereunder "to the district judge within the li_mits of whose jurisdiction the industrial concern carries on ...

I the whole or a substantial part of its business". A petition so made is to be decided in the manner provided by Section 32 of the Act, subsection (11) whereof inter alia provides that the functions of a district judge undt=;r the said Section shall be exercisable, in a Presidencytown, where there is a City Civii Court having jurisdiction, by a judge of the court and in the absence of such court, by the High Court. It has been urged by learned counsel for the appellant that in a case to which the provisions contained in sub-section (1) of Section 32 of the Act and of the Bombay City Civil Court apply, if the extent of the liability sought to be enforced against a surety is upto Rupees fifty thousand a petition under Section 31 read with Section 32 of the Act would lie before the Bombay City Civil Court and if the liability is more than the said amount it would lie before the High Court.

This, ~ according to him, is apparent from the use of the words "having jurisdiction" in sub-section (11) of Section 32 of the Act and the extent of the pecuniary jurisdiction of the Bombay City Civil Court as contained in Section 3 of the Bombay City Civil Court Act. According to him since in the instant case the liability sought to be enforced against the sureties was for a sum of more than Rupees fifty thousand the petition made by the appellant was maintainable in the High Court alone and not in the Bombay City Civil Court. On the other hand, it has been ilf urged on behalf of the respondents and the intervenor by their learned counsel that word "jurisdiction" used in sub-section (1) of Section 31 and sub-section ( 11) of Section 32 of the Act connotes territorial jurisdiction alone and that the concept of pecuniary jurisdiction is beyond the scope of Sections 31 and 32 in view of the decision of this Court in Gujarat State Financial Corporation v. Natson Manufacturing Co. Pvt.

Ltd. and Ors. , [1979] 1 SCC 193 relied on in Mis. Everest ili>- Industrial Corporation and Ors. v. Gujarat State Financial Corporation, [1987] 3 SCC 597 and Magan/al v. Mis. Jaiswal Industries, Neemach and Ors. , [1989] 4 SCC 344 which lays down that an application under Section 31(1) of the Act is neither a plaint as contemplated by Article 1 of Schedule 1 nor an application in the nature of a plaint as contemplated by Article 7 of the Court Fees Act, 1870, that the special procedure contained in Section 31(1) was not even something akin to a suit of a mortgagee to recover mortgage money by sale of mortgaged S: property, that even if the Corporation-applicant so chooses it cannot pray for a preliminary decree for accounts or final decree for payment of money nor can it seek any personal liability, that the Corporation cannot pray for a decree.

of its outstanding dues, that the reliefs contemplated by Section 31(1) on being granted do not result in a money decree or decree for recovery of outstanding loans or advance, that a substantive relief in an application under Section 31(1) is something akin to an application for attachment of property in execution of a }... decree at a stage posterior to the passing of the decree and that such relief cannot be valued in terms of the monetary gain or prevention of monetary loss. .... Having given our anxious consideration to the question we are inclined to ag'ree with the submission made by learned counsel for the appellant. The three decisions of this Court referred to. above and relied on by learned counsel for the respondents were not cases relat-· ing to the enforcement of a liability of a surety made possible by the amendments by Act 43 of 1985.

In our opinion, what has been laid down therein does not in any way militate against ascertaining in monetary terms value or the extent of the liability of a surety, which is .. {i'.... sought to be enforced and there is intrinsic evidence in Sections 31 and 32 themselves to support this view. Sub-section (2) of Section 31 makes it obligatory to state the "extent oLthe liability". Sub-section ~) (1) of Section 32 refers to "an amount/equivalent in value to the outstanding liability". Sub-section (lA) ·of Section 32 contemplates notice to the surety to show cause "why his liability" should not be enforced. Sub-section (9) of Section 32 contemplates investigation and ... - determination of "the claim" of the Financial Corporation which is to be recovered. If the application un. der Section 31(1) is made before a district judge, there is no difficulty because he has unlimited pecuniary jurisdiction.

The difficulty arises, as in the instant case, when such application is to be made either before the City Civil Court or the High Court as contemplated by sub-section (11) of Section 32. In our opinion, the extent of the liability stated in the application as contemplated by sub-section (2) of Section 31 of the Act would represent the +--' value of the claim of the Corporation and if such value is upto Rupees fifty thousand the application would lie in the City Civil Court and if it is more than that amount it would lie in the High Court. This interpretation would give meaning and relevance to the words "having juris- diction" used in sub-section (11) of Section 32.

A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words "and in the absence of such court, by the High Court" occurring in the said sub-section (11) inasmuch as in ~ Presidency-town, in terms of territorial jurisdiction, the jurisdiction of the City Civil Court and of the High Court is co-terminus. That it is so is clear from Section 3 of the Bombay City Civil Court Act and the definition of the term "Presidency-town" contained in Section 3(44) of the General Clauses Act, 1897 according to which "Presidency-town" shall mean the local limits for the time being of the ordinary original civil jurisdictioll'of the High Court of J~dicature at Calcutta, Madras or Bombay, as the case may be.

" It is a settled rule of interpretation of statutes that if the language and words used are plain and unambiguous, full effect must be given to them as they stand and in the garb of finding out the intention of the Legislature no words should be added thereto or subtracted therefrom. Likewise, it is again a settled rule of interpretation that. statutory provisions should be construed in a manner which subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose. The aforesaid interpretation of sub-section (11) of Section 32 of the Act is not only in conformity with the rule of interpretation referred to above, it also does not militate in any way with the concept of an application under Section 31(1) of the Act, not being a plaint in a suit for recovery of money. Reliance in this behalf has been placed by learned counsel fur the intervenor on a decision of the Delhi High Court in Parkash Playing Cards Manufacturing Company v.

Delhi Financial Corporation, AIR 1980 Delhi 48. In our opinion, however, the said decision is of little assistance in resolving the plea of jurisdiction raised in the instant case, namely, whethet in a Presidency-town an application under Section 31(1) of the Act is to be made before a City Civil Court or High Court. In the case of Parkash Cards Manufacturing Company (supra), the provision which came up for consideration in the forefront was Section 5 of the Delhi High Court Act, 1966 and the question of jurisdiction was largely considered on that basis. Sub-section (11) of Section 32 with pointed reference to the jurisdiction exercisable by a City Civil Court in a Presidency-town and the High Court did not fall for consideration in that case. The case,which throws some light on the point is a decision of the Calcutta High Court in West Bengal Financial Corporation v.

Gluco Series Private Limited, AIR 1973Cal 268) where it was held: "Section 32 sub-section (11) does not say that the City Civil Court wiil have exclusive jurisdiction but states "in the Presidency Town where there is City Civil Court having jurisdiction, by a Judge of that Court and iffthe absence of such Court by the High Court. " The words "in the absence of such Court" mean in the absence of such Court having jurisdiction in the matter. The City Civil Court has no jurisdiction to entertain and try suits and proceedings of Civil nature exceeding Rs. 50,000 in value. Here the value of the claims in the proceedings exceeds much more than Rs. 50,000 and, therefore, under Section 32, sub-section · (11) this proceeding has been duly instituted in the High· Court. " In the instant case the extent of the liability of the surety being .....

more than Rupees fifty thousand, the application could only have been filed and was rightly filed in the High Court and the finding in the judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot be sustained. Now we come to the second plea raised on behalf of the respondents, namely, that the relief claimed in the petition could not be granted under Sections 31 and 32 of the Act inasmuch as these sections did not contemplate passing of a money decree not only against the principal debtor but also against the sureties. In so far as the special machinery provided under Sections 31 and 32 of the Act being applied to a surety who has given some property in security, it has been pointed out by learned counsel for the appellant that even before the amendment introduced in these sections by Act 43 of 1985 a Division Bench of the Kerala High Court had, in Thressiamma Varghese v. K. S. f.

Corporation, AIR 1986 Kerala 222, taken the view that the provisions contained in these sections would be applicable. According to learned counsel, in any view of the matter, after the amendment of these sections by Act 43 of 1985 introducing specific provisions for. enforcement of the liability of a surety, the matter is now beyond doubt that the procedure contained in these sections shall be applicable for the enforcement of the liability of such surety who has given some property in security. According to him even in the judgment under appeal the High Court has accepted this proposition and has expressed its reservation with regard to•enforcement of the liability of a surety who has not given any property in security and has given only a personal guarantee. Reference in this conne Parliament has evinced an intention to effect a fundamental alteration + in the law with irresistible clearness.

In this context, it would be of relevance to note that while introduc;ing the said amendments Parliament has chosen not to make any alteration in relation to the following matters: (1) In the marginal note, section 31 is described as 'special provisions for enforcement of claims by Financial Corporation'. No altera- ~- tion has been made therein by Act 43 of 1985 and section 31 continues to be a special provision for enforcement of claims by Financial ,_ Corporation. J (2)Parliament has not expressly indicated that an order for payment of money only may be passed against the surety. (3)Aithough in sub-sections (8) and (SA) of section 32, express -.

r provision has been made prescribing the procedure for carrying into effect an order of attachment and sale of property and an order transferring the management of an industrial concern to the Financial Corporation passed under sub-section (7) of section 32, no specific provision was made prescribing the procedure for carrying into effect of an order passed under clause (da) of sub-section (7) of section 32 directing the enforcement of the liability of the surety. It cannot be ~ >< comprehended that while making a provision which would enable passing of an order in the nature of a money decree against a surety on an application under section 31 of the Act, Parliament would have refrained from making a corresponding provision prescribing the pro- ---.. cedure for carrying into effect of such an order.

Having regard to the features referred to above, it appears to be more in consonance with the scheme of the Act and the object under- ~ lying sections 31 and 32 that by introducing the amendments in sections 31 and 32 of the Act, Parliament intended to place the surety on the same footing as the principal debtor in the matter of enforcement of the claims of the Financial Corporation so as to enable the Financial Corporation· to obtain relief against the properties of the principal debtor as well as the surety. If considered in this perspective, the expression "enforcing the liability of any surety" in clause (aa) of j.. section 31(1) would mean enforcing the liability of a surety in the same manner as the liability of principal debtor is enforced, i. e.

, by attachment and sale of property keeping in view that the proceedings under sections 31 and 32 of the Act are akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree. This construction would obviate the need for a procedure for carrying into effect of the order passed under clause (da) of + sub-section (7) of section 32 of the Act because such an order would be an order for attachment and sale of the property of the surety and it can be carried into effect in accordance with sub-section (8) of section 32 which prescribes the procedure for carrying into effect an order for attachment and sale of property.

This construction will also preserve the special nature of the proceedings under section 31 and would not result in bringing about a fundamental alteration in the law laid down by this Court with regard to the nature of these proceedings as well as the general law whereunder a surety is to be treated on par with the principal debtor. · For the reasons aforesaid, I am in agreement with the view of the Division Bench of the High Court on this question and I am unable to concur with the decision of my learned brother Ojha, J. I would, therefore, uphold the decision of the Division Bench of the High Court that the petition whereby the appellant had sought the relief of a money decree for payment of Rs. 15,87 ,391. 20 paise against respondents 2 to 4 was not maintainable and the said relief could not be granted to the appellant in proceedings under section 31 of the Act. As a result, the petition filed by the appellant must be dismissed and for the same reason this appeal also must fail.

R. N. J. Appeal allowed. --