- (1.) Having been non suited in its suit for declaration and consequential relief of permanent injunction, by both the learned courts below recording their concurrent findings of facts, plaintiff has approached this Court by way of instant regular second appeal. Brief facts of the case, as noticed by learned first appellate court in para 2 and 3 of the impugned judgment, are that plaintiff was a Private Limited company duly incorporated under the Companies Act, 1956 and the suit was filed through Shri D.N. Pandey, Managing Director of plaintiff company. It was averred that the defendant was a Financial Corporation under State Financial Corporation Act 1951 (for short 'Act of 1951') and was engaged in the business oflending money and extending credit facilities to the small scale industries. Plaintiff purchased a plot from the defendant in an open auction for an amount of Rs. 43 lacs, vide agreement to sell dated 20.12.2000, out of which plaintiff deposited a sum of Rs. 10,75,000/- towards the 25% of the sale price. It was further averred that as per agreement to sell, the balance 75% of the sale price, i.e. Rs. 32,25,000/- was to be paid in 12 equal quarterly installments alongwith interest. However, apart from that, a bond of guarantee was also got executed illegally from the Managing Director of the company and defendants also included wrong clauses against the provisions of the Act of 1951. The balance 75% sale consideration was shown as loan, but actually it was not so. Clause 4(i) (iv) (ix) and xii were alleged to be unlawful and not applicable to the plaintiff. It was also averred that provisions of Section 29 of the Act 1951 were not applicable against the plaintiff. One installment was paid by the plaintiff but later on, due to heavy losses, plaintiff could not pay the remaining amount. Plaintiff shifted machinery worth rupees six lacs in another plant to commence the production of PVC wires and cables, but that also ran into trouble due to non-availability of electricity. It was averred that defendants illegally took the possession of the factory in the month of May 2003 in violation of the provisions of the Act of 1951, irrespective of the fact that plaintiff was still interested in running the unit. The defendants were further threatening the plaintiff company to recover the amount of balance sale consideration to the tune of Rs. 50,00,000/- and to invoke sections 29, 30, 31 of the Act of 1951, despite the fact that as per agreement to sell, the defendant got so many remedies with them such as forfeiting the advance and imposing penal interest upon the plaintiff company, but defendant was bent upon to recover the alleged balance sale consideration of Rs. 50 lacs from the plaintiff company illegally. As such, they were liable to be restrained from taking that step. Notice of the suit was issued upon the defendant.
(2.) Defendant appeared and filed written statement taking preliminary objections that the suit was bad for the purpose of court fee and jurisdiction, cause of action locus standi and estoppal etc. On merits, the factum of entering into agreement to sell with regard to purchase of plot in question in an open auction and payment of Rs. 10,75,000/- being 25% of tender money to the corporation by the plaintiff was admitted. As per terms and conditions of the agreement, the plaintiff failed to pay the remaining sale price alongwith interest, hence notice dated 19.7.2002 was issued for payment of default amount of Rs. 15,70,592/-. Auction notice of 27.3.2003 was also issued to the plaintiff for taking possession on 16.4.2003 but since none was present on behalf of the plaintiff, possession was taken over on 8.5.2003. It was further asserted that as some machinery and D.G. sets were missing from the unit, therefore, corporation issued notices dated 27.2.2004 and 8.3.2004 advising plaintiff company to restore the missing items. Defendant alleged that plaintiff was given sufficient opportunity to find a better buyer, but he failed and therefore on 27.5.2004 in auction, the plant and machinery were sold to one Rajesh Goyal for a sum of Rs. 16,50,000/- and the amount already paid by the plaintiff stood forfeited. It was denied that defendant, in violation of the provisions of the Act of 1951, took the possession of the industrial unit and put the same for re-auction at the costs and risk of the plaintiff company. As the plaintiff company remained fail to perform its part of obligation in terms of the agreement to sell dated 20.12.2000 in making the payment of Corporation's dues, the action of the defendant was valid and legal. Rest of the averments were denied and dismissal of the suit was prayed for.
(3.) On completion of pleadings of the parties, learned trial court framed the following issues:- 1. Whether the defendants have no right to recover Rs.50,00,000/- thus defendant can not invoke section 29 of the State Financial Corporation Act OPP. 2. Whether the plaintiff has a cause of action to get relief of injunction, as prayed for OPD. 3. Whether the suit of the plaintiff is not maintainable in the present form OPD. 4. Whether the plaintiff has not approached this court with clean hands for which he is not entitled to any equitable relief OPD 5. Whether the suit of the plaintiff is barred for lack of jurisdiction under State Financial Corporation Act, 1951 OPD 6. Relief -;